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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.

Turkey: Court Rules that Child Can Be Exempted from Compulsory Religious Classes

(Mar. 30, 2017) It was reported on March 15, 2017, that a court in Turkey’s southern province of Antalya had issued a decision stating that “compulsory religion classes are ‘openly against the law.’” The ruling was in response to a complaint filed by an atheist family seeking to have their child, “E.D.,” exempted from compulsory classes on religion. (Compulsory Religion Class ‘Against the Law,’ Court in Turkey’s South Rules, HÜRRIYET DAILY NEWS (Mar. 15, 2017); They Have Won a Lawsuit for Their Daughter to Be Exempted from Compulsory Religious Education, HABERCI07 (Mar. 15, 2017) (in Turkish).)

On November 17, 2016, the family had applied to the governor’s office in the district of Muratpasa to seek an exemption for the child from attending her primary school’s religion and morality classes, but the governor’s office responded that the class was compulsory. Assisted by the Antalya branch of the Education and Science Workers’ Union, the family then applied to the Antalya Fourth Administrative Court. The family had previously filed a similar case on behalf of their older daughter and had won that suit. (Compulsory Religion Class ‘Against the Law,’ Court in Turkey’s South Rules, supra.)

Reportedly, according to the court file, the plaintiffs contended that “the class is not taught in an ‘objective and pluralistic way,’ as the curriculum is based on only one religion, Sunni Islam.” (Id.) They also argued that “the fact that the class is compulsory, even though it could be against a student’s beliefs and philosophical views, is against the European Convention for the Protection of Human Rights and Fundamental Freedoms.” (Id.; Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocols No. 11 and No. 14 (Nov. 4, 1950), European Treaty Series – No. 5, Council of Europe website.)

The court ruled for a stay of execution in the case. It also opined that for the student to take the compulsory religion class would lead to “irreparable”consequences” for the plaintiffs. (Compulsory Religion Class ‘Against the Law,’ Court in Turkey’s South Rules, supra.)

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Burma: 2017 Union Tax Law Passed

(Mar. 30, 2017) The legislature of Burma (also known as Myanmar) passed the Union Tax Law 2017 (UTL) on March 1, 2017; it will come into force on April 1, 2017. (Suet Yen Loo, Myanmar: Union Tax Law 2017 Adopted, TAX NEWS SERVICE (Mar. 27, 2017), International Bureau of Fiscal Documentation online subscription database (IBFD); Law Draft to Union Tax Law 2017 (for purposes of solicitation of opinions), Lincoln Legal Services (Myanmar) website; for purposes of comparison, see Myanmar: Union Tax Law 2016 Passed, EY TAX INSIGHTS (May 2, 2016), & Translation of the Draft 2016 Union Tax Law, MYANMAR LAW BLOG (Dec. 27, 2015); for a previous full text of the Law, see Tax of the Union Law 2014 (Mar. 28, 2014), BURMA LIBRARY.)

Corporate Tax

In regard to corporate income tax, the rate will remain at 25%, “levied on companies registered under the Myanmar Companies Act or the Special Companies Act of 1950, state-owned enterprises, enterprises, and companies or cooperatives with a permit from the Myanmar Investment Commission.” (Suet Yen Loo, Myanmar: Union Tax Bill 2017, TAX NEWS SERVICE (Mar. 3, 2017), IBFD.) For cooperative societies registered and set up under the Cooperative Society Law, income tax will be levied on net profits, at graduated rates, after deductions for allowances set forth in the Income Tax Law. (Id., with reference to UTL § 19(a); The Co-operative Society Law (The State Law and Order Restoration Council Law No. 9/92) (Dec. 22, 1992), International Labour Organization website;  Income Tax Law (as amended up to Nov. 2011), § 6, Directorate of Investment and Company Administration website.)

The Ministry of Planning and Finance can grant tax exemption or relief to domestic and foreign organizations that operate on the basis of donated money or to public companies listed on the Yangon Stock Exchange, for information technology-related matters. (Myanmar: Union Tax Bill 2017, supra.)

The capital gains tax rate levied under the new Law remains at 10%, but if a company is engaged in the oil and gas sector, graduated rates of 40%-50% will be applicable to its profit. (Id.)

Individual tax

Individual tax rates and types of tax relief remain mostly the same under the 2017 UTL, with progressive rates continuing to range from 0%-25% based on an individual’s income bracket and the basic tax relief and relief for dependent parents, spouses, and children that were in place continuing to apply. (Id.)

Commercial tax

The commercial tax rate remains in general at 5%, unless the UTL specifies that a lower rate applies, e.g., in the case of certain goods such as grains and vegetables produced in the country for domestic sale (no tax is charged) or, to encourage competition with imported goods, on proceeds from the sale of goods produced and sold by registered citizen entrepreneurs or production businesses owned by citizen entrepreneurs or state-owned enterprises (a 2% rate is charged). (Id.; Tax of the Union Law 2014, arts. 11 & 17.) The tax rate on the sale of gold jewelry was reduced in the new Law, from 5% to 3%. (Myanmar: Union Tax Bill 2017, supra).

The number of goods listed as exempt from commercial tax increased to 87 in the new UTL from the previous 86 items listed. (Id; Union Tax Law 2017, LEGAL ALERT (Mar. 7, 2017), Baker McKenzie website.) Goods added to the UTL as being exempt from commercial tax include, for example, wheat grain and wheat flour; raw materials for detergent power and soap; pure gold, gold bars, and gold plate; “goods purchased by Buddhist or other religious organizations with money donated only for the usage of Buddhist or other religious matters”; and certain precious gems and raw materials for jewelry.  (Myanmar: Union Tax Bill 2017, supra.) There were also changes to the list of services that are exempt from commercial tax.

Previously, businesses with a turnover of up to MMK20 million (about US$ 14,859) within one financial year were exempt from commercial tax; now, those with a turnover of up to MMK50 million (about US$37,148) will be exempt. (Id.)

Reportedly, the number of services not subject to commercial tax is 29, with one category, “employment agency services,” removed and two additional exempt services, the Aung Bar Lay (Lottery) services and industrial agricultural services, included. (Union Tax Law 2017, supra.)

Special Goods Tax

Rate changes were made to the special goods tax (SGT), apparently first introduced in the 2016 UTL to apply to “special goods that are produced in the country, imported or exported,” and “payable in addition to the standard commercial tax.”  (Myanmar: Union Tax Law 2016 Passed, EY TAX INSIGHTS (May 2, 2016).) The list of goods subject to the tax “includes tobacco and alcohol products, teak and hardwood logs, precious stones, jewellery, luxury cars, fuel and natural gas.” (Id.) For domestically produced goods, the manufacturer must submit a monthly tax return and pay the SGT “within 10 days after the end of every month.” (Id.)

The 2017 UTL introduced SGT significant rate changes for importing and manufacturing of such goods as cigarettes (an extra MMK 1 per cigarette), cheroots, cigars, pipe tobacco, and betel (an increase of 20% to an 80% tax rate); liquor and wine (but not beer, which is still at a 60% rate); wood logs (a reduction from a 20% rate to 5%); and uncut gems. (Union Tax Law 2017, supra.) In addition, the number of types of goods subject to the tax was reduced from 20 to 17. (Myanmar: Union Tax Law 2017 Adopted, supra.) For exports, the tax rate is reduced from 20% to 10% for wood logs and from 20% to 15% for uncut jade and 20% to 10% for other gemstones. (Union Tax Law 2017, supra.)

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Italy: Measures to Fight Against Illegal Immigration Bolstered

(Mar. 29, 2017) On February 18, 2017, new legislation on the fight against illegal immigration entered into effect in Italy. (Decree Law No. 13 of February 17, 2017, Urgent Provisions for the Acceleration of International Protection Procedures and for the Fight Against Illegal Immigration (D.L. No. 13), NORMATTIVA (in Italian).)

More Efficient Handling of Non-EU Citizens

The new legislation provides for accelerated procedures to identify and define the legal situation of non-European Union citizens and to fight illegal immigration and the trafficking of migrants. (D.L. No. 13, art. 15(1).)  In accordance with EU legislation, the director of Italy’s National Central Police for Crime Prevention under the Ministry of the Interior, after consultation with the Italian Committee for Strategic Analysis of Anti-Terrorism, has the authority to adopt a decision to reject the entry of a migrant from outside the EU into the national territory.  (Id. art. 15(1).)

To better identify non-EU citizens under international protection, EU residence permits issued for long-term residence to foreigners who are beneficiaries of international protection must contain the phrase “international protection recognized by [name of the state] on [date].” (Id. art. 9(1)(a)(1).)  Pursuant to EU legislation, should foreigners holding these residence permits become subject to removal procedures, the EU states that have recognized such permits must implement removal procedures after consultation with the EU state that originally issued the permit.  (Id. art. 8(1)(b)(2).)

When due to force majeure it is not possible to implement the repatriation of foreigners, judicial authorities must order the restoration of detention for the time strictly necessary to carry out the expulsion order.  (Id. art. 19(2)(b).)   Detention centers must be located outside urban areas and must be furnished with appropriate public facilities and structures to ensure respect for the human dignity and personal freedom of the persons subject to removal procedures.  (Id. art. 19(3).)

The new legislation also contains measures to strengthen cooperative activities between Italian government agencies that administer the country’s Automatized Information System and the Italian Automatized Fingerprints Identification System (i.e., the Ministry of the Interior’s Public Security Department and the Civil Liberties and Immigration Department, respectively) and the Schengen Information System in order to eliminate illegal immigration.  (Id. art. 18(1).)  The Schengen Information System “is a highly efficient large-scale information system that supports external border control and law enforcement cooperation” in the 26 European States that comprise the Schengen Area.  (Schengen Information System, European Commission website (last updated Mar. 21, 2017).)

Additionally, measures are included for the identification of foreign citizens found to be in an “irregular situation” in the national territory or who are rescued  at sea.  (D.L. No. 13, art. 17(1). )  

New Judicial Units to Review Immigration Cases 

The legislation creates specialized judicial units, ascribed to the ordinary tribunals in several Italian cities most affected by recent immigration, for handling immigration cases.  (Id. art. 1(1).)  The national Superior School of Magistrates appoints judges to the specialized units from among magistrates who enjoy specific competences in the field of immigration.  (Id. art. 2(1).)  The Superior School of Magistrates must organize courses and programs specialized in immigration according to the criteria established in the new legislation.  (Id. art. 2(1).)  One of these criteria is that applicants have knowledge of the English language.  The specialized unit judges must also comply with continuing legal education requirements.  (Id.)

Specialized units review controversies related to:

(a) the non-recognition of the right of residence in Italy of other EU nations’ citizens or their relatives;

(b) appeals against decisions on expulsion, for public security reasons, affecting non-Italian EU citizens or their relatives;

(c) the recognition of the right to international protection in procedures in which the respective prefect (questore, a city’s administrative head) orders the detention or extension of detention of a requester of international protection;

(d) the recognition of humanitarian protection;

(e) the denial of authorization for family reunification and of a residence permit based on that ground; and

(f) establishment of the status of statelessness.  (Id. art. 3(1) & (2).) 

Procedural Provisions for Immigration Cases 

Under the new legislation, an immigration hearing must be recorded through audiovisual means and transcribed into the Italian language through available voice recognition systems.  (Id. art. 6(1)(c).)  The court-appointed interpreter must verify the accuracy of the transcription.  (Id. art. 6(1)(c).)  A copy of the recorded transcript and the verbal transcription must be kept for a minimum of three years, a computer filing must be sent to the Ministry of the Interior, and a copy of the transcript in the Italian language must also be provided to anyone who requests international protection.  (Id. art. 6(3) & (4).)  The law also contains procedural provisions regulating the implementation of decisions issued as a result of immigration proceedings.  (Id. art. 6(4)-(18).)

In agreement with local communes, prefects must promote initiatives that can be used by requesters of international protection, on a voluntary basis, in social activities of benefit to the community, while the requesters are awaiting an appeal decision. (Id. art. 8(1)(d).)  The requester of international protection must remain at a detention center awaiting the execution of an expulsion or refoulement order when there are reasonable grounds to believe that a judicial appeal has been presented only to delay or frustrate the enforcement of such an order.  (Id. art. 8(1)(b)(1).)

The Superior Council of the Judiciary must define a special plan to address the increase in the number of jurisdictional proceedings related to requests by migrants present in Italy for access to the international and humanitarian protection regime and to provide for other judicial procedures related to the influx of migrants.  (Id. art. 11(1); see also Dante Figueroa, Italy, REFUGEE LAW & POLICY, Law Library of Congress website (Mar. 2016).)

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Netherlands: Legislation to Allow More Testing of Driverless Vehicles

(Mar. 29, 2017) On February 24, 2017, the Dutch Cabinet approved a bill that removes legal restrictions and makes it possible for manufacturers to carry out much more extensive testing of self-driving vehicles, without the physical presence of the driver in the vehicle. (Self-Driving Vehicles to Hit the Roads, Ministry of Infrastructure and the Environment (Feb. 28, 2017); Sjoerd Hartholt, Vrij baan zelfrijdende auto door experimenteerwet [Public Road Self-Driving Vehicles by Virtue of Experimental Testing Law], BINNENLANDS BESTUUR (Feb. 27, 2017).)  According to the Ministry of Infrastructure and the Environment,

Driverless-vehicles can mean a great deal in terms of mobility: they can drive more closely behind one another so that road capacity is better utilized. Moreover, since the vehicles can communicate with each other, traffic will flow more smoothly. And, traffic will also become safer: currently, some 90% of road accidents are caused by human error. In addition, self-driving vehicles use less fuel which make[s] them environmentally friendly and financially more attractive. (Self-Driving Vehicles to Hit the Road, supra.)

Features of the Experimental Use Law

The draft law will “enable companies to apply for a permit to conduct tests with driverless-vehicles on public roads, with a human being ready to take command via remote control.” (Id.)  Since July 2015, automated vehicle testing has already been allowed through an exemption granted by the Netherlands Vehicle Authority (RDW), but it required that a human being always be in the vehicle to physically take over control if necessary.  (Id.)  The Cabinet had approved the large-scale testing of self-driving cars and trucks on public roads in January 2015, but the requisite legislative changes had to be made before such testing could be implemented.  The first such test conducted in the Netherlands occurred in November 2016 on a highway outside Amsterdam.  (Dutch Approve Driverless Cars for Public, Large-Scale Testing, CTVNEWS (Jan. 24, 2015).) According to the Ministry of Infrastructure and the Environment, the RDW will assess in advance “the locations and conditions under which tests can be performed without the presence of a driver,” through “collaboration with experts, including the National Scientific Institute for Road Safety Research in the Netherlands (SWOV), the relevant road authority and the police.” (Self-Driving Vehicles to Hit the Road, supra.)

Based on the testing done on public roads, the Minister of Infrastructure and the Environment can determine whether further amendment of the legislation is necessary.  This approach, the Ministry indicated, “implements the desire of the cabinet to produce future-proof legislation through which impediments to innovation are removed in a timely fashion.” (Id.)

Possible Specifics of Exemptions to Be Added to Road Traffic Act 

The draft Law Governing the Experimental Use of Self-Driving Vehicles (Experimenteerwet zelfrijdende auto), according to a text made available on the Internet last year, amends the Road Traffic Act by adding two new subsections to article 149a of the Act that expand on the exemption from the Act’s provisions and those of other acts insofar as they have to do with a driver or registration number of the owner of a vehicle. The new subsections allow an exemption “to the extent necessary to conduct experiments with automated systems in vehicles”; however, the Act’s provisions on supervision, enforcement, and criminal responsibility would still apply.  (Experimenteerwet zelfrijdende auto [Law Governing the Experimental Use of Self-Driving Vehicles] OVERHEID.NL  (last visited Mar. 23, 2017) (click on pdf icon near “Draft for Internet Consultation” to view text in English; the consultation was conducted from July 7, 2016 to Sept. 1, 2016); Wegenverkeerswet 1994 [Road Traffic Act 1994] (Apr. 21, 1994, as last amended effective Mar. 15, 2017).)

Under a proposed new article 149aa of the Road Traffic Act, the exemption for experimental testing within the meaning of article 149a is to stipulate:

a. The purpose of the experiment,

b. The roads or road sections on which the experiment will be carried out,

c. The period of time for which the exemption shall apply,

d. The rules referred to in Article 149a, subsection three, from which there may be derogation and, to the extent relevant, the conditions on which derogations shall be allowed,

e. The safety measures that shall be taken in order to conduct the experiment with a view to the interests referred to in Article 2, subsection one [to ensure safety on the road; to protect road users and passengers; to maintain the road and guarantee its usability; to ensure, insofar as possible, freedom of movement];

e.[sic] Control of the positioning, device and method, as well as supervising independent administrative bodies which perform tasks in the field of this law.

f. How the experiment shall be monitored and evaluated by the Netherlands Vehicle Authority (RDW),

g. That use of the exemption shall be terminated if safety is jeopardised as a result or partly as a result of the experiment. (Id. § B, new art. 149aa.)

Among other measures, the draft law also states that an exemption for the experiments to test automated vehicles will require the permission of the Minister of Infrastructure and the Environment. (Id. § B, new art. 149aa ¶ 2.)  The Minister may decide to revoke the exemption if, in his/her opinion, “road safety is in jeopardy as a result or partly as a result of the experiment.”  (Id. § B, new art. 149aa ¶ 3.)  The RDW will submit a report on its evaluation of the testing to the Minister.  (Id. § B, new art. 149aa ¶ 4.)  The draft law also provides for rules on the provision of documents and data by the applicant when applying for an exemption to be prescribed by ministerial order. (Id. § C, new art. 150(3).)

Developments in the European Union

In 2016, at the initiative of the Netherlands, the transport ministers of the 28 European Union Member States signed the Declaration of Amsterdam on Cooperation in the Field of Connected and Automated Driving (Declaration). (Self-Driving Vehicles to Hit the Road, supra; Declaration of Amsterdam (Apr. 4, 2016),  The Netherlands EU Presidency 2016 website (click on download link to view text).)  One of the objectives of the agreement is “to work towards a coherent European framework for the deployment of interoperable connected and automated driving, which should be available, if possible, by 2019 … .”  (Declaration, art. I(a).)

In February 2017, the Netherlands and other EU Member States reached agreements to establish, “as quickly as possible, the large-scale testing of self-driving vehicles,” including, among other tests, “truck platooning and vehicles that communicate data to one another in order to drive on automatic pilot.” (Self-Driving Vehicles to Hit the Road, supra.)  It is expected that the first tests will occur at the end of 2017 or early in 2018.  (Id.)  The various countries and manufacturers involved also concurred that in 2019 it should be possible for self-driving vehicles to cross borders.  (Id.; see also Clare Feikert-Ahalt, Great Britain: Technology Bill Introduced to Regulate Driverless Cars, Increase Penalties for Misuse of Lasers, GLOBAL LEGAL MONITOR (Mar. 21, 2017).)

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Sweden: Court Rules Legislation Must Be Made Available Free of Charge

(Mar. 29, 2017) On March 15, 2017, the Swedish Supreme Court, in an advisory decision, explained that laws and regulations must be available free of charge to the public in order for a conviction or a fine imposed under their relevant provisions to be lawful. (Press Release Högsta domstolen,  Författningar måste vara tillgängliga i läsbar form och gratis [Legislation Must Be Available in Readable Format and Free of Charge] (Mar. 15, 2017), Supreme Court website; Supreme Court Decision Ö 4833-16, Mar. 15, 2017, HÖGSTA DOMSTOLEN (in Swedish).)

Background

Two youths, both 16 years of age, had brought green, class 3B lasers to school and were fined by the Attunda District Court for violating the Radiation Protection Act, which prohibits possession of that type of laser. (Supreme Court Decision Ö 4833-16 at 2; 8a § Strålskyddslagen [Radiation Protection Act] (SFS 1988:220) NOTISUM.) The regulation that defines and lists which lasers are illegal to possess was only available in the publication “Svensk standard SS EN 60825-1, utgåva 4, 2007” [Swedish Standard SS EN 60825-1, Edition 4, 2007].  This publication includes a list maintained by Svensk Elstandard (Swedish Electric Standard) and available only upon payment of SEK1091 (about US$124) to Svensk Elstandard, a non-profit organization responsible for electricity-related standards in Sweden  (Supreme Court Decision Ö 4833-16, at 3; About SEK, SVENSK ELSTANDARD (last visited Mar. 27, 2017).)

The Court’s Finding

The Supreme Court held that requiring the abovementioned process of access to the law violates the principle of legality (legalitetsprincipen) (nullum crimen sine lege), a fundamental principle of Swedish law that requires that for a person to be convicted of a crime there must be a law against said action.  (Supreme Court Decision Ö 4833-16, at 4-5; 2 ch. 10 § 1 para Regeringsformen [Instrument of Government] [Constitution], NOTISUM.) In the case at hand, there was a law prohibiting class 3B lasers from being used, but lasers that belong to class 3B were only defined in a legal text deemed not readily available to the public because a written copy was only available through purchase. (Supreme Court Decision Ö 4833-16, at 3.)  There is an international classification system for lasers for safety purposes, “based on their potential for causing injury to humans’ eyes and skin”; class 3B  and class 4 of the four main classes of visible-beam consumer lasers are deemed hazardous to eye exposure.  (Laser Classes, Laser Safety Facts website (last visited Mar. 27, 2017).)

The fact that information on the content of the regulation could be accessed by calling the Svensk Elstandard or the Swedish Radiation Safety Authority (Strålskyddsmyndigheten) was not considered by the Court to be a sufficiently readily available means of access to the definitions to meet the standards of the principle of legality. (Supreme Court Decision Ö 4833-16 at 5.)  Leave for appeal to the Appeals Court was therefore granted to the defendants, with the instruction that the Court of Appeal render a decision consistent with the Supreme Court Decision.  (Id.)

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