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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.

Israel: High Court Strikes Down Draft Exemption for Ultra-Orthodox

(Sept. 25, 2017) On September 12, 2017, Israel’s Supreme Court, sitting as a High Court of Justice with an extended bench, ruled eight to one to strike down amendment numbers 19 and 21 of the Defense Service [Consolidated Version] Law, 5746-1986, which had introduced a new framework for the deferment and exemption of Haredim (ultra-Orthodox Jews) from the compulsory military service that generally applies to all Israeli citizens and permanent residents 18 years old and older.  The main decision was rendered by Court President Miriam Naor. (HCJ 1877/14 Movement for Quality of Government in Israel v. the Knesset (decision rendered on Sept. 12, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); Defense Service [Consolidated Version] Law, 5746-1986, SEFER HAHUKIM [OFFICIAL GAZETTE, SH] 5746, No. 1170 p. 107, as amended (the Law); full text of amendments 19 & 21 available at Reshumot (a Ministry of Justice website for all legal publications; including SH), search requires using the relevant Jewish year (תשע”ד & תשע”ו, respectively) and subject שירות בטחון (in Hebrew).)

Background 

The petitioners claimed that by providing for different rules regarding the draft for different populations in Israeli society based on each population’s religious beliefs, the deferral/exemption arrangement for the ultra-Orthodox harmed the constitutional rights to equal treatment and human dignity that are protected under the Basic Law: Human Dignity and Liberty. (Id. ¶¶ 31-35; Basic Law: Human Dignity and Liberty (5752-1992) as amended (unofficial translation), Knesset website (last visited Sept. 18, 2017).)

Naor noted that draft deferment for yeshiva (Orthodox Jewish college or seminary) students was initially based on a 1949 decision of the Minister of Defense and went on to describe, the developments that had taken place since that time. (HCJ 1877/14, ¶¶ 1-9.) She pointed out that the arrangement that was the subject of the petition was issued in response to a 2012 voidance by the Supreme Court of previous legislation on the subject. (Id. ¶ 7, referring to HC 6298/07 Resler v. Knesset (Feb. 21, 2012), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); for a summary of the 2012 decision and legal developments leading to that decision, see Ruth Levush, Israel: Amendment Law Imposes Military Draft and National Service Obligations on Yeshiva Students, GLOBAL LEGAL MONITOR (Mar. 31, 2014) & Ruth Levush, Israel: Supreme Court Decision Invalidating the Law on Haredi Military Draft Postponement (Mar. 2012), Law Library of Congress website.)

Verdict

One of the main innovations of the current arrangement, according to Naor, was the adoption of a “collective model of military service deferment” for all yeshiva students as determined by the government, in lieu of the former individual case-by-case model. The arrangement provided for two separate “adjustment” periods.  In the first period (March 20, 2014 to June 30, 2020), the Minister of Defense could defer and even exempt older students, irrespective of the draft quotas that had been determined by the government.  (HCJ 1877/14, ¶¶ 12-19.)  In the second period (July 1, 2020 to June 30, 2023), the Minister was authorized to annually defer the service of yeshiva students until they reached the age of 21, after which further deferments could be allowed until the age of 26 if the general military draft quota established by the government was met.  Full exemption could then be granted by the Minister, irrespective of whether the quota was met.  The legislature has not made any determination for the period commencing after the expiration of the second period.  (Id. ¶¶ 20-23.)

Among the arrangement’s “inherent faults,” according to Naor, is the fact that it remained completely voluntary in the first period and, for many of the yeshiva students, also for the second period, which gave the Minister the discretion to exempt them irrespective of whether draft quotas were met. The “most severe failure” of the arrangement, Naor opined, was its temporary nature and the fact that it did not define any permanent objectives, including eliminating inequality in the application of the military draft and “bringing about a real social change.”  (Id. ¶ 97.)

Instead, “the arrangement merely left the existing situation in place” and delayed “dealing with the complex and explosive challenge” that has divided Israeli society for dozens of years, namely, the unequal application of the draft. Under these circumstances, Naor concluded, the arrangement introduced by the amendments “was not proportional” in that it exceeded the necessary measures for achieving its objectives, in contravention of article 8 of the Basic Law: Human Dignity and Liberty.  (Id. ¶ 98)

Accepting the petitions, Naor declared the nullity of Chapter C1 of the Defense Service Law, which sets forth the details of the arrangement. The judgment will take effect one year from its rendering, to allow military authorities time to prepare, and the Knesset to deliberate on, a legislative solution on the draft of yeshiva students.  (Id. ¶ 107.)

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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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