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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: New Law Making Torture a Crime

(Sept. 20, 2017) On July 18, 2017, new legislation creating the crime of torture entered into effect in Italy. (Law No. 110 of July 14, 2017, Introduction of the Crime of Torture in the Italian Legal System (Law No. 110), GAZZETTA UFFICIALE  (July 18, 2017) (in Italian).) To effect this change, the new legislation introduces articles 613-bis and 613-ter in the Italian Criminal Code. (Id. art. 1(1); THE ITALIAN PENAL CODE (Edward M. Wise & Allen Maitlin trans. 1978), Library of Congress bibliographic information); Codice Penale [Criminal Code] (updated to Aug. 2017), ALTALEX.)

The Crime of Torture in General 

The new law punishes anyone who, using serious violence or threats, or acting with cruelty, causes acute physical suffering or a verifiable psychological trauma to a person who is deprived of his freedom or is entrusted to the person’s custody, parental authority, supervision, control, care, or assistance, or who is in a situation of diminished defense. (Law No. 110, art. 1(1) ¶ 1, introducing art. 613-bis in the Criminal Code.) The law punishes such conduct with four to ten years of imprisonment upon conviction if the offense is committed by more than one action or if the action or actions involve treatment that is inhuman and degrading to the dignity of a human being. (Id.) If the punishable actions cause a serious personal injury, the penalty will increase by one-third; if a very serious (gravissima) personal injury is caused, the penalty will increase by half. (Id. art. 1(1) ¶ 4.) When death results as an unintended consequence of the actions, a penalty of 30 years of imprisonment applies, but if the convicted felon intentionally caused the death of the victim, the sentence is life imprisonment. (Id. art. 1(1) ¶ 5.)

Torture Committed by a Public Official 

When the actions of torture are committed by a public officer or an officer in charge of a public service, through abuse of power or in violation of the duties inherent in his functions or service, a penalty of imprisonment of five to twelve years will be imposed upon conviction. (Id. art. 1(1) ¶ 2.) This provision does not apply in the case of suffering resulting solely from the execution of legitimate measures that deprive or limit the rights of a person. (Id. art. 1(1) ¶ 3.) The law also punishes the public officer or the officer who is in charge of a public service and who, in the exercise of his functions, encourages another public officer or officer in charge of a public service to commit the offense of torture, if the action of encouragement is not accepted by the second officer or if it is accepted but the crime is not committed. (Law No. 110, art. 1(1) ¶ 1, introducing new art. 613-ter in the Criminal Code.) Imprisonment for a period of from six months to three years applies upon conviction in these cases. (Id.)

Inadmissibility of Evidence Acquired Through Torture

The new legislation also amends a provision of the Italian Criminal Procedure Code concerning the admissibility of evidence in criminal proceedings to establish that declarations or information obtained through the crime of torture are not admissible as evidence in criminal procedures, except against the persons accused of the crime of torture and for the sole purpose of proving their criminal responsibility. (Law No. 110, art. 2(1); Codice di Procedura Penale [Criminal Procedure Code] (updated to July 18, 2017), art. 191, ALTALEX.)

Exclusion of Extradition to States Where Torture Is Practiced

The new legislation rejects the expulsion or extradition of a person from Italy to another state when there are reasonable grounds to believe that that person is at risk of being subjected to torture. (Law No. 110, art. 3(1).) The assessment of reasonable grounds must take into consideration the existence, in that state, of systematic and serious human rights violations. (Id.)

Exclusion of Immunity

The law denies all types of immunity in Italy to foreigners subjected to criminal procedures or convicted of the crime of torture in another state or by an international tribunal. (Id. art. 4(1).) In these situations, the foreigner must be extradited to the requesting state where the criminal proceedings are pending, the sentence of conviction for the crime of torture has been issued, or, in the case of proceedings before an international court, to the court itself or to the state identified,as provided in the statutes of the same international court. (Id. art. 4(2).)

Criticism

Italy’s new law has been criticized as falling short of European and international standards for measures to combat torture. (Claudio Francavilla, Italy’s New Law on Torture Fails to Meet International Standards, HUMAN RIGHTS WATCH (July 11, 2017).)

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Tunisia: Government Lifts Ban on Inter-Religious Marriages

(Sept. 19, 2017) On September 14, 2017, the Tunisian government lifted a ban on inter-religious marriages between Muslim Tunisian females and non-Muslim males. (Tunisia Lifts Ban on Muslim Women Marrying Non-Muslims, AL JAZEERA (Sept. 14, 2017).) This measure was issued by Tunisian President Beji Caid Essebsi.  During his speech on the national Women’s Day that took place on August 13, 2017, Essebsi had proposed amendments to the provisions governing rules of inheritance and marriage contracts in the Personal Status Law of 1956. (Ahmed Nadhif, Tunisian President Calls for Gender Equality in Inheritance Law, AL-MONITOR (Aug. 21, 2017); Order of 13 August 1956, 66 AL RAA’D AL RASMI [OFFICIAL GAZETTE] (Aug. 17, 1956) (in Arabic).)

Essebsi proposed the repeal of the inheritance provision that grants men the right to inherit twice as much as women and adoption of a new provision that allows women to inherit on an equal basis with men.  Furthermore, he suggested the abolishment of the provision that bans inter-religious marriages between Muslim women and non-Muslim men.  It has already been legal for Muslim men to marry outside their religion.  (Essebsi Calls for the Modification of a Piece of Legislation Banning Tunisian Women from Marrying Non-Muslims, MOSAIQUEFM (Aug. 13, 2017) (in Arabic).)

Reactions to the Proposed Amendments

The statement of the President sparked widespread opposition among religious groups, which argued that it is in direct violation of Islamic law because it is Islamic law that governs such family matters. In a joint statement, Islamist political groups claimed that allowing inter-religious marriages and granting equal portions of inheritance to females conflict with the Quran and the main principles of Islamic Shari’a law.  (Nawal Sayed, Tunisian Opposition Call for Ouster of President Essebsi, EGYPT TODAY (Aug. 16, 2017).)

On the other hand, individuals supporting Essebsi contend that his approach towards inter-religious marriages and female inheritance adheres to provision 21 of the Tunisian Constitution of 2014. (Nadhif, supra.) Article 21 provides that “all citizens, male and female, have equal rights and duties, and are equal before the law without any discrimination.” (Tunisia’s Constitution of 2014, CONSTITUTE PROJECT (unofficial English translation).) Essebsi’s supporters say that the proposed amendments are also in line with article 46 of the Constitution, which stipulates that “the state commits to protect women’s accrued rights and works to strengthen and develop those rights” and”[t]he state guarantees the equality of opportunities between women and men to have access to all levels of responsibility in all domains.”  (Id. art. 46; Nadhif, supra.)

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Israel: Parliament Establishes New Department for Government Oversight

(Sept. 19, 2017) A special parliamentary unit for oversight of governmental actions was recently established in the Knesset (Israel’s parliament). The Knesset Unit for Parliamentary Oversight (KATEF, based on the Hebrew acronym, which also means “shoulder(s)” in Hebrew).  (Press Release, The Knesset Establishes a Unit for Coordination and Oversight of the Government (Sept. 30, 2017), Knesset website  (in Hebrew).)

KATEF will operate in coordination with the Knesset’s committees, legal department, and Information and Research Center (KIRC) and with government offices. KATEF’s work will be guided equally by the coalition majority and the opposition. Former KIRC head Dr. Shirely Avrami will head KATEF, which will operate directly under the Knesset Director General.  (Id.)

KATEF’s establishment follows several hearings by a Knesset House Committee on examining ways to strengthen the Knesset’s oversight of the government. Among concerns raised at a May 24, 2017, hearing were the non-compliance of government officials with requests to appear before Knesset committees and the exorbitant number of private member bills filed.  (Reformation of the Relations Between the Government and the Knesset, House Committee website (May 24, 2017) (in Hebrew).)

Among other possible actions, KATEF is expected to address concerns about the government’s sometime lack of issuance of implementing regulations for Knesset legislation, resulting, in the view of the Knesset House Speaker, in weakening the status of the Knesset. (Gideon Alon, Knesset: The Responsibility Is on the Shoulders, YISRAEL HAYOM (July 23, 2017) (in Hebrew).)

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Kyrgyzstan: Court Denies Ballot Petition of Opposition Leader

(Sept. 12, 2017) On August 31, 2017, the Supreme Court of Kyrgyzstan upheld a lower court’s rejection of a petition to list opposition leader Omurbek Tekebaev on the presidential election ballot this October. (Elizabeth Lowman, Kyrgyzstan Supreme Court Rejects Petition to Put Imprisoned Opposition Leader on Ballot, PAPER CHASE (Aug. 31, 2017).)  Although a petition was  submitted with about 39,000 signatures in support of Tekebaev’s nomination, well over the  30,000 required, the Central Election Commission had contended that the signatures were not valid because his election fund did not cover the expenses of collecting the signatures.  (Id.)

Background

Tekebaev was placed in pre-trial detention in February 2017, with his detention confirmed by the Supreme Court in March, on charges of bribery, charges his supporters say are politically motivated. (Kyrgyz Supreme Court Upholds Detention of Opposition Leader, RADIO FREE EUROPE/RADIO LIBERTY (Mar. 29, 2017).) He was subsequently convicted and is now serving an eight-year term of imprisonment. (Lowman, supra.)

Relevant Law

Under Kyrgyzstan’s Constitution, the Supreme Court is “the highest body of judicial power in respect of civil, criminal, administrative as well as other cases; it shall revise the court rulings of local courts upon appeals of the participants in the judicial process in accordance with procedures established by the law.” (Kyrgyzstan’s Constitution of 2010, art. 96(1), CONSTITUTE PROJECT.) Its decisions are final and cannot be appealed.  (Id. art. 96(3).)

The law that governs presidential elections specifies that candidates for the presidency must have 30,000 signatures and that these signatures must be collected by authorized representatives of the candidate. (The Constitutional Law of the Kyrgyz Republic on Presidential and Jogorku Kenesh Elections in the Kyrgyz Republic (2011, as amended in 2017), art. 52 ¶¶ 1 & 2, LEGISLATION LINE (click on link embedded in the title of the law).)  The same law specifies that registration of a candidate will be canceled if a criminal court sentence for that candidate has entered into force.  (Id. art. 46 ¶ 2(8).)

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Japan: Basel Act Amended

(Sept. 12, 2017) The Act on Control of Export, Import, etc. of Specified Hazardous Wastes and Other Wastes (Basel Convention Act, Act No. 108 of 1992, E-GOV (in Japanese) is a Japanese domestic law corresponding to the Basel Convention to protect human health and the environment against the adverse effects of hazardous wastes.  (Overview, Basel Convention website (last visited Sept. 1, 2017).)  The Diet (Japan’s parliament) recently amended the Act and the amendment Act was promulgated on June 16, 2017.  (Act No. 62 of 2017, KANPO, Extra Ed. No.128, at 33 (June 16, 2017) (in Japanese).)  The amendment will be effective within one and a half years from the date of promulgation. (Id. Supp. Provisions, art. 1.)

The Basel Convention Act requires that people involved in the import and export of specified hazardous wastes for disposal or recycling obtain approval from the Ministry of Economy, Trade and Industry (METI) under the Foreign Exchange and Foreign Trade Act (Act No. 228 of 1949). (Basel Convention Act, art. 4 ¶ 1 & art. 8 ¶ 1.) The amended Act aims to enhance export regulations to achieve the purpose of the Convention.  (METI & Ministry of the Environment, Regarding a Bill to Partially Amend the Act on Control of Export, Import etc. of Specified Hazardous Wastes and Other Wastes (Basel Convention Act), METI website (Mar. 2017), (in Japanese).)

In order to effectively regulate mixed wastes that include specified hazardous wastes, the amendment clarifies the scope of the specified hazardous wastes, specifying them in a Ministry of the Environment ordinance. (Basel Convention Act, art. 2 ¶ 1 item 1(a).)  The amended Act also adds wastes that are designated as hazardous wastes by the domestic legislation of another country and that are to be exported to that country to the definition of specified hazardous wastes under the Basel Act.  (Id. new art. 2 ¶ 1 item 1(e).)  In addition, the amended Act clarifies what the Minister of Environment considers to be necessary pollution prevention measures of countries to which specified hazardous waste are exported.  (Id. new art. 4 ¶ 3.)  The METI Minister needs the Minister of Environment’s notification confirming that the necessary measures have been taken in the given country before the METI Minister can approve the export of the specified hazardous wastes.  (Id. art. 4 ¶ 4.)

Further, the amended Act aims to enhance the competitiveness of the domestic recycling business. It removes imports of relatively less hazardous wastes, such as electronic substrate materials when imported for recycling purposes, from regulation under the Act.  (Id. new art. 4 ¶ 3.)

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