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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.

Italy: Constitutional Court Annuls Legislation Permitting Continuation of Activities by an Industrial Facility of National Strategic Interest

(Apr. 23, 2018) On February 7, 2018, the Italian Constitutional Court declared the unconstitutionality of several legal provisions that allowed the continuation of activities at industrial facilities considered of national strategic interest in violation of constitutionally protected workers’ rights. (Decision No. 58 of March 23, 2018, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE] [G.U.] Mar. 28, 2018, G.U. website (in Italian).)

Background of the Case

In 2015 the Public Prosecutor of the city of Taranto ordered the urgent preventive seizure of the blast furnace and industrial plant of a company because it had allegedly violated several legal provisions requiring it to adopt measures to protect its workers from incandescent materials emanating from the furnace that killed a worker. (Decision, considerations of fact, ¶ 1.2.) The defendant company challenged the Public Prosecutor’s seizure order before the Ordinary Tribunal of Taranto.  That court reviewed the dispute under Decree-Law 92 of 2015 which, among others, permitted judicial seizure orders regarding alleged crimes against worker safety in nationally strategic industries, provided for the suspension of company activity for a maximum of 12 months, and mandated that the company adopt a plan for the protection of safety at workplaces referred to in the seizure order within 30 days of its adoption. (Decree-Law No. 92 of July 4, 2015, on Urgent Measures on Waste and Integrated Environmental Authorization, as well as on the Exercise of the Activity of Industrial Companies of a National Strategic Interest art. 3, ¶¶ 1–3, G.U. July 4, 2015, G.U. website (in Italian).)

Arguments on the Constitutionality of the Challenged Legislation

The defendant industry requested that the Public Prosecutor permit the continuation of its economic activities at its facilities in accordance with the requirements established in article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.3.)  The Public Prosecutor opposed the request on various grounds, and requested that the case be sent to the Italian Constitutional Court to decide on the constitutionality of article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.4.)

Ordinary Tribunal of Taranto Raises Constitutional Concerns

The Ordinary Tribunal of Taranto through a judicial decree of July 14, 2015, raised before the Italian Constitutional Court the matter of the constitutionality of article 3 of Decree-Law No. 92 of 2015 and other relevant provisions.  (G.U. Aug. 20, 2015, G.U. website (in Italian) (Decision, holding).  It argued that article 3 of Decree-Law No. 92 of 2015 potentially violated the following principles of the Italian Constitution (COSTITUZIONE DELLA REPUBBLICA ITALIANA [CONSTITUTION OF THE ITALIAN REPUBLIC], Italian Senate website; Italy’s Constitution of 1947 with Amendments Through 2012 (CONST.), Comparative Constitutions Project website):

  • The fundamental and inviolable rights of the human person (CONST. art. 2), by allowing a company to operate facilities that are dangerous to human life and safety (Decision, considerations of fact, ¶ 1.8).
  • Equality under the law (CONST. art. 3), by creating an unjustified privilege for companies of national strategic interest, which would abide by a lower safety standard than other economic operators, causing workers to be exposed to higher risks (Decision, considerations of fact, ¶ 1.9).
  • The right to health of citizens/workers (CONST. art. 32), endangering their personal safety by failing to exercise a reasonable balance with other constitutional rights (Decision, considerations of fact, ¶ 1.11).
  • Developing private economic activity without causing damage to human safety, freedom, and dignity (CONST. art. 41, ¶ 2) by permitting the operation of a dangerous facility (Decision, considerations of fact, ¶ 1.12).
  • The obligation of the Public Prosecutor to institute criminal proceedings (CONST. art. 112), in particular because the constitutional mandate requires not only the suppression of a crime but also its prevention, which, in this case, would have required the permanency of the seizure measure (Decision, considerations of fact, ¶ 1.13).

Considerations of the Constitutional Court on the Merits of the Case

The Court ruled that in the case under review, the legislature did not respect the constitutional mandate to strike a reasonable and proportional balance of all the relevant constitutional interests converging in the case. (Decision, considerations of law, ¶ 3.2.) The Court held that article 3 of Decree-Law No. 92 of 2015 violated several constitutional guarantees, among other reasons, by requiring an exclusively unilateral plan in case of judicial seizure, by failing to establish immediate and timely actions aimed at swiftly removing the danger to the safety of workers, and by allowing economic activity to continue during the period of the seizure. (Id.)

The Court concluded that article 3 had created an unusual privilege under the Constitution for certain economic activities to the detriment of important constitutionally-protected rights, in particular, with respect to workers’ safety (Decision, considerations of law, ¶ 3.3) and declared the unconstitutionality of article 3 of Decree-Law No. 92 of 2015, and related provisions (Decision, considerations of law, ¶ 4).

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Malaysia: Anti-Fake News Act Comes into Force

(Apr. 19, 2018) The Anti-Fake News Act 2018 was published in the Federal Gazette of Malaysia on April 11, 2018, coming into effect that day. (Anti-Fake News Act 2018 (Act 803), Federal Gazette website.) The Act was passed by the Malaysian Parliament on April 4 and received Royal Assent on April 9.

The Act defines “fake news” as including

any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas. (Id. s 2.)

Section 4 of the Act sets out the offense of “creating, offering, publishing, etc., fake news or publication containing fake news,” stating that

[a]ny person who, by any means, maliciously creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit [about US$128,575] or to imprisonment for a term not exceeding six years or to both, and in the case of a continuing offence, to a further fine not exceeding three thousand ringgit [about US$771] for every day during which the offence continues after conviction. (Id. s 4.)

During the debate in the Parliament, the word “knowingly” was changed to “maliciously” in this section, and the penalty was reduced from a maximum of ten years of imprisonment to six years. (G. Surach, Its [sic] Official, the Anti-Fake News Act 2018 Comes into Force Today, SUN DAILY (Apr. 11, 2018).)

The Act provides for the extraterritorial application of this offense, stating that where an offense is committed by any person, whether a Malaysian citizen or not, outside of Malaysia, and where the fake news concerns Malaysia or affects a Malaysian citizen, it may be dealt with as if it was committed within Malaysia. (Anti-Fake News Act 2018, s 3.)

The Act also enables people affected by the publication of fake news to apply for a court order requiring the removal of the publication. (Id. s 7.) The government is able to make such an application, and the Act provides that where a person is subject to an order obtained by the government in relation to a publication that is prejudicial, or likely to be prejudicial, to public order or national security, he or she cannot apply for the order to be set aside. (Id. s 8(3).) Where a person does not comply with a removal order, the police can be authorized by the court to “take the necessary measures to remove such publication.” (Id. s 9(1).)

Rationale for the Act

In a set of questions and answers, the minister in the Prime Minister’s Department with responsibility for the bill, Azalina Othman, stated that

[t]he issue of dissemination of fake news is a global problem, following the technological communication revolution, which is happening at a rapid pace. Of late, Malaysia has faced numerous challenges as an effect from fake news which not only confuses the public but can also threaten the safety, economy, prosperity and well-being of the people and the country.

. . . .

We have to understand that although there are relevant laws, but until today, the rapid and complex development of communications technology means the problem still cannot be managed effectively. What [sic] more, these laws, such as the Penal Code, Printing Presses and Publications Act 1984, and Communications and Multimedia Act 1998, were drafted during or before the 1990s, and could not address the nature of increasingly complex offences in line with rapid technological progress. (Nazura Ngah, FAQs: What You Need to Know About the Anti-Fake News Bill 2018, NEW STRAITS TIMES (Mar. 26, 2018).)

She stressed that there were no existing laws directly related to fake news, and that other countries had also realized that “fake news is a global threat to the world of information, and needs to be tackled swiftly and effectively,” with the Philippines also having drafted a bill on the issue. (Id.) She also said that the government had decided to “allow a neutral and fair party, which is the courts, to decide, which is by due process of law. The courts will have the power to rule on the disposal of any publication deemed to contain fake news.” (Id.) In response to criticism of the bill, she said that the claim that it would curtail freedom of speech is “unsubstantiated and politically-motivated” and highlighted other actions of the government that had furthered the right to free speech in the country. (Id.)

Application of the Act

Police in Malaysia have reportedly already started to apply the new Act, with an investigation being initiated in mid-April 2018 in Johor Bahur regarding “a hoax claiming that the Johor Crown Prince Tunku Mahkota Johor Tunku Ismail Sultan Ibrahim would be footing the bill of shoppers at several supermarkets in the state.” (Ibrahim Isa, Hoax Over TMJ’s Cash Giveaway 1st Case Probed Under Anti-Fake News Law, NEW STRAITS TIMES (Apr. 13, 2018).)

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Germany / European Court of Human Rights: Caning of Children Justifies Withdrawal of Parental Authority

(Apr. 19, 2018) On March 22, 2018, the European Court of Human Rights (ECtHR) unanimously held in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany that the withdrawal of the applicants’ parental authority did not violate article 8 of the European Convention on Human Rights (ECHR), which grants the right to respect for private and family life. The applicants, members of the Twelve Tribes Church living in communities in Bavaria, had challenged German court decisions that partially withdrew their parental authority and placed their children in foster care because the applicants continuously punished their children by caning. (Tlapak and Others v. Germany, App. Nos. 11308/16 & 11344/16 (Eur. Ct. H.R., 2018), ECtHR website; Wetjen and Others v. Germany, App. Nos. 68125/14 & 72204/14 (Eur. Ct. H.R., 2018), ECtHR website; Convention for the Protection of Fundamental Rights and Freedoms (European Convention on Human Rights) (ECHR), art. 8, Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website).

Background

The Twelve Tribes Church is a Christian religious community centered on the Apostolic Age of Christianity. Among other beliefs, the members of the community maintain that corporal punishment of children by caning is prescribed by their particular faith, relying on several sections of the Bible for evidence. (Ulrike Heidenreich, Abgewiesene Klage der “Zwölf Stämme” – Eine Wohltat für die Rechte von Kindern [Rejected Lawsuit of the “Twelve Tribes” – A Blessing for Children’s Rights], SUEDDEUTSCHE (Mar. 22, 2018).)

For over ten years, the Twelve Tribes communities in Bavaria have clashed with the local authorities many times over issues like homeschooling (which is generally not allowed in Germany) and corporal punishment. Repeatedly, the police have taken children away from their parents and placed them in the care of foster families, and attempts have been made to prosecute the parents and teachers for causing bodily harm to the children entrusted to them. (Christian Rost, Prügelnde Sekte “Zwölf Stämme“ nach Tschechien übergesiedelt [Beating Sect “Twelve Tribes” Relocates to Czech Republic], SUEDDEUTSCHE (Jan. 4, 2017).) In 2013, after video footage of the systematic practice of caning even very small children was brought to the public’s attention, the police raided two communities in Bavaria and separated 40 children from their parents. (Heidenreich, supra.)

According to article 6, paragraph 2 of the German Basic Law—the German Constitution—parents generally have the right and obligation to care for and raise their children as they see fit under the supervision of the state. (Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 6, para. 2.) On the other hand, article 1, paragraph 1 and article 2, paragraph 2 of the Basic Law also guarantee human dignity and children’s right to physical integrity. Moreover, in 2000, the right of children to a nonviolent upbringing was codified in section 1631, paragraph 2 of the German Civil Code. (BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BGBl. I at 42, 2909; 2003 BGBl. I at 738, as amended, German Laws Online website). Section 1666, paragraph 1 of the Civil Code provides that courts can order necessary measures if the well-being of children is at risk and the parents are unwilling or unable to avert the risk. (Id.)

Facts of the Case

 The applicants—four families belonging to Twelve Tribes Church communities in Bavaria—challenged German family court decisions that in part withdrew their parental authority and ordered that their children be placed in children’s homes and foster families.

After the widespread caning of children by the members of the Twelve Tribes Church was made public, the local child welfare services initiated interim proceedings before the family courts, which partially withdrew the parental authority and authorized some children to be placed with foster families. In the main proceedings that followed, the family courts came to the conclusion that the caning constituted child abuse and the separation of the families was justified because, as the parents insisted that corporal punishment was a legitimate child-rearing method, the child abuse was expected to continue. The Court of Appeal dismissed the applicants’ appeal and the Federal Constitutional Court refused to hear the applicants’ constitutional complaints. (Tlapak and Others v. Germany, paras. 7–49; Wetjen and Others v. Germany, paras. 7–24.)

The applicants claimed that these decisions violate their right to respect for private and family life (ECHR, supra, art. 8) and that the proceedings before the German family courts were not only excessively long but also unfair, being based only on general perceptions regarding their religious community (id. arts. 6 & 8). Moreover, the applicants invoked articles 9 and 14 in conjunction with article 8 of the ECHR and article 2 of Protocol No. 1, alleging that they were deprived of the opportunity to raise their children in accordance with their religious beliefs and that, as their religion was the reason for the withdrawal of parental authority, their religious community was stigmatized by the courts’ decisions. (Tlapak and Others v. Germany, para. 3; Wetjen and Others v. Germany, para. 3.)

Decision

 The ECtHR rejected the applicants’ claims in Tlapak and Others v. Germany regarding excessively long main proceedings before the family courts because the proceedings took only one year and eleven months and the courts did not cause any particular delays. (Tlapak and Others v. Germany, paras. 65–66.) In the case of Wetjen and Others v. Germany, the German government made a declaration recognizing a violation of article 8 of the ECHR due to the length of the interim proceedings before the family courts, thus removing the issue from the scope of the decision. (Wetjen and Others v. Germany, paras. 42–43, 45–48.)

Furthermore, the ECtHR decided that the risk of inhuman or degrading treatment of children, which is prohibited in absolute terms in article 3 of the ECHR, justified the partial withdrawal of parental authority and the splitting up of the families. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)

Thus, the Court concluded that the German courts had struck the right balance between the conflicting rights at issue and had not violated the ECHR in their decisions. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)

Aftermath

In the meantime, the families of the Twelve Tribe Church communities in Bavaria have moved to the Czech Republic, where corporal punishment of children is not prohibited conclusively and comprehensively. (Heidenreich, supra.)

Prepared by Felicia Stephan, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

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Malaysia: National Human Rights Action Plan Launched

(Apr. 16, 2018) On March 1, 2018, the Prime Minister of Malaysia, Najib Razak, officially launched the National Human Rights Action Plan (NHRAP). (Press Release, Office of the Prime Minister, Action Plan Malaysia’s Commitment on Human Rights – PM (Mar. 1, 2018).) The development of the NHRAP was approved by the Cabinet in 2012 and was subsequently overseen by the Legal Affairs Division (Bahagian Hal Ehwal Undang-undang, BHEUU) of the Prime Minister’s Department, which engaged consultants to seek input from all stakeholders. (See Press Release, Pusat KOMAS, Dialogue with the Consultants of the National Human Rights Action Plan (NHRAP) (May 16, 2016), Hakam website; Seminar on the Development of National Human Rights Action Plan for MalaysiaINSTITUTE OF DIPLOMACY AND FOREIGN RELATIONS (2012); NHRAP, BHEUU (last visited Apr. 13, 2018).)

A copy of the NHRAP in the Malaysian language has subsequently been made available on the BHEUU website: Pelan Tindakan Hak Asasi Manusia Kebangsaan 2018 (National Human Rights Action Plan).

The NHRAP has five “pillars”: political and civil rights, socioeconomic and cultural rights, the rights of the disabled, indigenous rights, and complying with Malaysia’s international commitments. Within these pillars come 294 action plans in 83 priority areas. (NHRAP Falls Short of Addressing Systemic Inequalities in Malaysia — Comango, MALAY MAIL ONLINE (Mar. 6, 2018).) The Prime Minister said that the document “would become a solid foundation in transforming the government efforts to strengthen human rights in the country.” (Press Release, Office of the Prime Minister, supra.)

The government stated that it will launch a smartphone application in April 2018 to gather feedback on the implementation of the NHRAP. It has also agreed to establish a “high-level committee” to monitor implementation of the NHRAP. (Azura Abas, NHRAP Mobile App Will Be Available for All Come April, NEW STRAITS TIMES (Mar. 1, 2018).)

Nongovernmental groups in Malaysia have criticized the government “for allegedly cracking down on dissent and introducing legislation they say erodes freedom of speech.” (Samisha Naidu, PM Najib Launches National Human Rights Plan for a “Kinder Malaysia,” CHANNEL NEWS ASIA (Mar. 1, 2018).) The Coalition of Malaysian NGOs in the Universal Periodic Review (UPR) Process (Comango) commended the government on “finally launching” the NHRAP and found many areas to be “comprehensive and well-explored.” However, it also considered that the NHRAP “falls short in addressing systemic human rights issues, root causes of inequality and the enjoyment of human rights for all in the country, and lacks a gender perspective.” (NHRAP Falls Short of Addressing Systemic Inequalities in Malaysia — ComangoMALAY MAIL ONLINE (Mar. 6, 2018).)

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Iran: IMF Evaluates Iran’s Legislative and Institutional Efforts to Combat Money Laundering and Terrorism Financing

(Apr. 13, 2018) In its March 2018 report assessing the economic situation in Iran, the International Monetary Fund (IMF) found that Iran had made progress in reforming its policies on combating money laundering and the financing of terrorism and was taking steps to improve the country’s connections to the international banking and trade system. (IMF, Islamic Republic of Iran: Selected Issues 24–29, IMF Country Report No. 18/94 (Mar. 7, 2018), IMF website; IMF Highlights Iran’s AML/CFT Progress, FINANCIAL TRIBUNE (Apr. 5, 2018) (by subscription).)

Background of Reforms

Iran’s anti-money laundering (AML) law (2008) and bylaw (2010) criminalized money laundering, established a ministerial coordination council and Financial Intelligence Unit, and instituted preventive measures for financial institutions and certain nonfinancial businesses and professions.  Iran also adopted a law on combating the financing of terrorism (CFT) in 2016.

The Financial Action Task Force on Money Laundering (FATF), an intergovernmental organization established to combat international money-laundering and terrorist financing, suspended previously instituted countermeasures against Iran in June 2016 in response to Iran’s high-level political commitment to reform its AML/CFT framework. Iran, however, remains on the list of Non-Cooperative Countries or Territories issued by the FATF. (Mohammad Affianian, Iran Accelerating Reforms Ahead of FATF Deadline, FINANCIAL TRIBUNE (Jan. 28, 2018); Who We Are, FATF (last visited Feb. 1, 2018); Olga Balakina et al., Bank Secrecy in Offshore Centres and Capital Flows: Does Blacklisting Matter? 2 (Baffi Carefin Centre, Working Paper No. 2016-20, May 2016), Research Papers in Economics website. )

Since June 2016, Iran has established a cash declaration regime at its border and introduced draft amendments to its AML and CFT laws in Parliament to make those laws conform to international standards. (IMF Highlights Iran’s AML/CFT Progress, supra.) Other efforts by Iran to strengthen its AML/CFT framework include its ratification on January 24, 2018, of the United Nations Convention Against Transnational Organized Crime (UNTOC), and the Central Bank of Iran’s (CBI’s) recent approval of several preventive measures to be implemented by financial institutions, including customer due diligence and collecting beneficial ownership information. (Iran Takes Initial Step to Join UNTOC, TEHRAN TIMES (Jan. 24, 2018); IMF Highlights Iran’s AML/CFT Progress, supra.) The government had pushed all these reform measures in an effort to have Iran removed from the FATF list of Non-Cooperative Countries or Territories by the FATF’s deadline of January 31, 2018. (Affianian, supra.)

However, several items contained in the FATF Action Plan, including amendments to the current AML/CFT laws and a bill regarding Iran’s accession to the International Convention for the Suppression of the Financing of Terrorism (currently being debated at the powerful Majlis (Parliament) National Security and Foreign Policy Commission), remained incomplete as of the deadline. (Maziar Motamedi, Iran Traces Political Motives in FATF Decision, FINANCIAL TRIBUNE (Feb. 24, 2018).)

Amendment of the Law on Combating the Financing of Terrorism

Two Iranian parliamentary commissions are currently debating bills on reforming the country’s policies on money laundering and the financing of terrorism. (Affianian, supra.) The Parliament passed the Law on Combating the Financing of Terrorism on March 17, 2016 (Islamic Parliament Research Center website (in Persian)), and the Cabinet approved some amendments to this Law for debate in Parliament on October 29, 2017. (Executive Bylaw of the Law on Combating the Financing of Terrorism, Oct. 29, 2017, Laws and Regulations Portal of Iran (in Persian).)

The amended version of the Law on Combating the Financing of Terrorism includes a provision requiring “all natural and legal entities, including non-governmental and charity organizations,” to register identifying information on their clients in their systems and refrain from providing services to those on sanction lists. (Iran Gov’t Notifies CFT Law, FINANCIAL TRIBUNE (Nov. 7, 2017).) In addition, these entities must assess the risk status of their clientele on the basis of “their background, occupation, income and asset sources, original birthplace and current place of residence, [and] services they wish to use,” among other criteria, and refuse to offer services to clients who cannot be screened through “reliable independent data sources.” (Id.) Furthermore, they are required to make increased efforts to identify risky clients on the basis of guidelines provided by the High Council of Anti-Money Laundering and fully identify account beneficiaries. (Id.)

The amended version of the Law also places restrictions on financial institutions, prohibiting them from “establishing correspondent ties with shell banks” and maintaining correspondent ties with banks that work with shell banks. (Id.) Lastly, the amendment directs the High Council of Anti-Money Laundering to institute measures to prevent nongovernmental and charity organizations from engaging in terrorist financing. (Id.)

IMF Recommendations

In its assessment, the IMF made recommendations to Iran aimed at further restoring confidence in the its financial system, improving Iran’s status with the FATF, and accelerating Iran’s reintegration into international financial and trade systems. The most critical recommendation is that Iran adopt and publish before the FATF’s June 2018 plenary meeting the comprehensive legislative and regulatory framework based on the FATF Action Plan agreed to by Iranian authorities. (IMF Highlights Iran’s AML/CFT Progress, supra.)

Other recommendations by the IMF include

  • conducting a National Risk Assessment on money laundering and terrorism financing to enhance authorities’ understanding of risks and development of appropriate policies;
  • improving AML/CFT risk-based supervision of banks and other financial institutions and imposing relevant corrective actions;
  • the issuing by the CBI of guidance to financial institutions to improve compliance in identifying beneficial owners and domestic politically exposed persons (PEPs) and applying effective preventive measures;
  • developing mechanisms (such as a public registry for beneficial ownership) to ensure the transparency of and timely access to accurate and current information of all types of entities established in Iran;
  • improving the system of declaration of assets of senior public officials in line with international best practices;
  • establishing an autonomous anti-corruption agency with law enforcement powers to prioritize the pursuit, prosecution, and adjudication of corruption cases without outside interference; and
  • improved domestic coordination between between AML and anti-corruption frameworks. (Id.)

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