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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.

France: Constitutional Court Strikes Down Prohibition on Accessing Terrorist Websites

(Jan. 17, 2018) On December 15, 2017, France’s Conseil constitutionnel (Constitutional Court) struck down a legislative provision prohibiting access to websites that support terrorism. (Conseil Constitutionnel, Decision No. 2017-682 QPC, Dec. 15, 2017, CONSEIL CONSTITUTIONNEL.) The provision, which was part of a security law adopted in February 2017, prohibited “habitual” access to websites that supported or called for acts of terrorism and contained images or representations of intentional killings, unless that website was accessed for “legitimate reasons,” such as journalistic or academic research. (Loi n° 2017-258 du 28 février 2017 relative à la sécurité publique [Law No. 2017-258 of 28 February 2017 Regarding Public Security] art. 24, LEGIFRANCE). The Conseil constitutionnel found that this provision was contrary to the freedom to communicate ideas and opinions as enshrined in article 11 of the 1789 Declaration of the Rights of Man and of the Citizen, which is considered part of the French Constitution. (Déclaration des Droits de l’Homme et du Citoyen de 1789 [Declaration of the Rights of Man and of the Citizen of 1789] art. 11, English translation, CONSEIL CONSTITUTIONNEL.)

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Germany: University Admission Rules for Medical Studies Partially Unconstitutional

(Jan. 16, 2018) On December 19, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the federal framework and state implementing provisions regulating university admissions for medical studies at Germany’s public universities are partially incompatible with the German Basic Law, the country’s Constitution. The Court stated that the provisions infringe the applicants’ constitutional right to equal participation in study programs offered at public universities. (BVerfG, Dec. 19, 2017, Docket No. 1 BvL 3/14, BVerfG website (in German); Press Release No. 112/2017, Federal Constitutional Court, Legal Provisions of the Federation and the Laender Relating to University Admissions to Medical Studies Are Partly Incompatible with the Basic Law (Dec. 19, 2017), BVerfG website; Basic Law for the Federal Republic of Germany (May 23, 1949), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 12, ¶ 1, sentence 1 in conjunction with art. 3, ¶ 1, GERMAN LAWS ONLINE (unofficial English translation).)

The unconstitutional provisions will remain in force until new provisions have been enacted. The Court set a deadline of December 31, 2019, for the legislature. (BVerfG, 1 BvL 3/14, at para. 253.)

Facts of the Case

The rules for university admissions for studies at public universities in Germany can be found in the Federal Framework Act for Higher Education and in the state laws ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. The states also authorized the public universities to enact rules to regulate their internal admission procedures. (Id. at 4; Hochschulrahmengesetz [HRG] [Framework Act for Higher Education], Jan. 19, 1999, BGBl. I at 18, as amended, GERMAN LAWS ONLINE; Staatsvertrag über die Errichtung einer gemeinsamen Einrichtung für Hochschulzulassung [State Treaty on the Establishment of a Joint Center for University Admissions], June 5, 2008, GESETZ- UND VERORDNUNGSBLATT NORDRHEIN-WESTFALEN [GV. NRW.] [STATE GAZETTE OF LAWS AND ORDINANCES FOR NORTH RHINE-WESTPHALIA] at 710, annex.)

The Federal Framework Act for Higher Education provides that every German who fulfills the requirements to study at a university, meaning everyone who has successfully graduated from high school (Abitur), is entitled to pursue the university studies of his or her choice. (HRG § 27.) The states and the universities are obligated to develop common criteria to determine the number of available admission spots and the maximum number of students that each university may admit in a given year if it seems likely that not all applicants will receive a spot. In cases in which several universities have established maximum admission numbers, the spots for that course of study will be distributed by the Joint Center for University Admissions. (Id. §§ 30, 31.)

The admission to medical studies at German public universities is restricted nationwide because there are generally more applicants than admission spots. Up to 30% of the spots are reserved for specific applicant groups—for example, applicants for whom a rejection would constitute extreme hardship, in particular, social hardship; applicants who are from a foreign country or are stateless; and applicants who have already completed another course of study, among others. (Id. § 32, ¶ 2; BVerfG, 1 BvL 3/14, at 13.) The rules provide that for the remaining spots, 20% will be allocated on the basis of high school final examination grades, 60% on university-specific admission criteria, and 20% on elapsed waiting time since high school graduation. (HRG, § 32, ¶ 3.) The Federal Framework Act for Higher Education provides a nonexhaustive list of criteria that universities must take into account, but requires that the final high school examination grade have “significant influence” on the admission decision. (Id. § 32, ¶ 3, no. 3.) Some of the state laws that implement and further define the selection criteria provide exhaustive lists for the universities to take into account when making the admission decision, whereas other state laws leave it up to the universities to define additional criteria. (BVerfG, 1 BvL 3/14, at 28–36.)

Applicants must submit a ranking of their preferred universities with their application to the Joint Center for University Admissions. The State Treaty limits that number to six. (Id. at 22.) Location preference is one criterion that has been frequently used by the universities in making their selections. For the winter semester of 2017/2018, fifteen universities considered applications only from students who ranked those universities as a first choice, four other universities chose location preference as the most or second-most important criterion, and another four universities selected location preference as the most, second-, or third-most important criterion. (Id. at 18.)

The constitutional complaint was submitted to the Federal Constitutional Court by the Administrative Court of Gelsenkirchen, which has two pending cases from students who have been denied admission to study medicine. The Administrative Court of Gelsenkirchen stayed the two proceedings and asked the Federal Constitutional Court to rule on the constitutionality of the admission criteria as codified in the Federal Framework Act for Higher Education and in the state provisions ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. (Id. at 49.)

Decision

The Federal Constitutional Court held that the legal provisions on university admissions to medical studies are unconstitutional to the extent that they

  • allow universities to autonomously define further selection criteria;
  • do not ensure that the university-specific admission procedures are conducted in a standardized and structured manner;
  • allow the universities to use location preference as an additional criterion in their admission procedure without any restrictions;
  • do not provide a balancing mechanism for rendering high school graduation grades from different German states sufficiently comparable in university admissions procedures; and
  • do not require universities to consider at least one additional selection criterion as equally important as the high school examination grade. (Id. at 246.)

The Court stated that everyone who fulfills the general admission criteria has a constitutional right to equal participation in study programs offered at public universities. However, it reiterated that this right exists only within the framework of actually available education capacities and does not obligate the government to create additional capacities to accommodate everyone. (Id. at 105 & 106.) It explained that particularly for popular programs of study like medicine, this might result in not everyone actually receiving a spot at a university. (Id. at 106.)

The Court explained that in cases in which there are not enough places for all applicants, the selection must generally be based on aptitude. (Id. at 108.) It held that there are no constitutionally required criteria to assess aptitude, but that the admission criteria have to be transparent and predictable. (Id. at 113 & 114.)

The Court held that basing the admission decision for 20% of the available places on the high school examination grade is constitutionally unobjectionable. (Id. at 127.) However, it stated that it is unconstitutional if within that context priority is given to candidates on the basis of their location preference, thereby “devaluing” the high school examination grade and replacing it with location preference. In the opinion of the Court, location preference can be used only as a secondary criterion. (Id. at 136 & 137.) Furthermore, it ruled that the number of location preferences cannot be limited. (Id. at 138.)

Lastly, the Court stated that allocating places according to waiting time was constitutional, but that the number cannot be higher than the current 20%. (Id. at 221.) However, it held that not limiting the waiting time was unconstitutional, because “waiting too long substantially impairs the chances of success in studies and therefore the possibility to actually choose one’s profession.” (Id. at 223 & 224.)

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Japan: Supreme Court Affirms Reversal of Order to Return Children with Dual Citizenship

(Jan. 12, 2018) On December 21, 2017, Japan’s Supreme Court affirmed a High Court decision that reversed a previous order for the mother of four children with dual Japan-US citizenship to return the children to their father in the United States. (Sup. Ct., Case No. 2017 (kyo) 9 (Dec. 21, 2017) (in Japanese; click characters beside PDF icon at the bottom), COURTS IN JAPAN .)

Background

The appellant was a male US citizen and the appellee his wife, who is a Japanese national. Their four children were born while they were living in the US. In July 2014, the Japanese wife and the four children went to Japan for a six-week stay agreed on by both the wife and husband. In August 2014, the parents agreed that the wife and children’s stay in Japan would be extended because the husband was having difficulty finding employment in the US, and the husband also agreed that the four children would be enrolled in school in Japan in September 2014. The husband and his mother separately visited the children in Japan later that year. (Id.; Subcommittee Hearing: Hope Deferred: Securing Enforcement of the Goldman Act to Return Abducted American Children, Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, 113th Cong. (July 14, 2016) (statement of James Cook), House of Representatives website.)

In January 2015, the husband filed for divorce in the US. In July 2015, he filed an application with the US State Department to request the children’s return to the US. (Subcommittee Hearing, supra.) The application was based on the Convention on the Civil Aspects of International Child Abduction (Child Abduction Treaty), Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW. Japan also has a law to implement the Convention: Act for Implementation of the Convention on the Civil Aspects of International Child Abduction (Implementation Act), Act No. 48 of 2013 (Japanese Law Translation website). During the investigation procedure, the Osaka Family Court found the husband did not have the financial resources to raise the children. In October 2015, the Osaka Family Court decided the two elder children would stay in Japan and the two younger ones would go back to the US. The Court found, in principle, that all the children should be returned under the Convention and the domestic law implementing the Convention. (Subcommittee Hearing, supra; Child Abduction Treaty art. 12; Implementation Act art. 27.) However, the two elder children objected to the return, and the Court found that they were mature enough to object. (Child Abduction Treaty art. 13; Implementation Act art. 28, para. 1, item 5.) Both sides appealed the decision. In January 2016, the Osaka High Court found that the two elder children’s objections were valid but also that it would be better for them to go back to the US. Therefore, the High Court ordered the wife to return all four children to the US. (Case No. 2017 (kyo) 9.) The High Court decision was finalized in the same month. (Id.)

However, the wife did not comply with the court order. Even after she was ordered to pay 5,000 yen (about US$4,500) per person for every day she did not comply with the return order, she did not return the children. (Subcommittee Hearing, supra.) In September 2016, the enforcement officers’ attempts to remove the children from their mother’s residence in Japan were not successful because the children refused to leave. (Case No. 2017 (kyo) 9; Simon Scott, Three Years After Japan Signed Hague, Parents Who Abduct Still Win, LINKEDIN (Oct. 30, 2017).)

On the other hand, in February 2016, the house in the US where the family used to live was placed under auction, and in August 2016, the husband moved out the house and began living in one room in a third party’s house. (Case No. 2017 (kyo) 9.)

In early 2017, the wife filed a petition to change the return order because the situation had changed since the order was issued. (Implementation Act art. 117.) The Osaka High Court agreed with the wife and reversed the original decision, declining the husband’s request to return the children to the US. It was this decision that the Supreme Court affirmed in December 2017. The Court stated that the living environment that would be provided for the children had worsened to an extent the Court could not ignore. The Court found that the benefits of the two elder children returning to the US despite their objections had been lost, and that it had become more likely that the two younger children would be in an unbearable situation. (Case No. 2017 (kyo) 9.)

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Finland: Supreme Court to Make English Summaries of Precedents Available Online and Begin Using ECLI Code in 2018

(Jan. 12, 2018) On January 2, 2018, the Finnish Supreme Court announced it will make some of its precedents available through summaries in English. (Press Release, Finnish Supreme Court, The Supreme Court of Finland Starts to Publish Summaries of Its Precedents in English (Jan. 2, 2018), SUPREME COURT.) The cases will be limited to those involving interpretations of the European Convention on Human Rights, the law of the European Union (EU), and international law. (Id.) Some earlier precedents have already been summarized in English and made available on the Court’s website. (Summaries of Selected Precedents in English, SUPREME COURT (Dec. 11, 2017).)

Under Finnish law, the Supreme Court must make its decisions available in Finnish or Swedish, depending on what language the lower courts have used, unless the court and parties decide differently. (3 kap. 17 § Språklagen [Language Act] No. 2003/423 (in Swedish), FINLEX website.)

Also in 2018 the Court will begin using ECLI (European case law identifier) codes for its decisions. (Press Release, Finnish Supreme Court, HD:s prejudikat börjar förses med ECLI-kod 2018 (Jan. 3, 2018) (in Swedish), SUPREME COURT.) The first Supreme Court case of 2018 has been assigned ECLI number ECLI:FI:KKO:2018:1. (Id.) The ECLI code is meant to create a uniform manner in which to cite cases within the EU; the individual countries decide whether to adopt the code or not. (Id.) Finland will become the first Nordic country to adopt the standard.

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Japan: Supreme Court Says Pretense of Being Deceived Did Not Affect Responsibility for Attempted Fraud

(Jan. 11, 2018) On December 11, 2017, Japan’s Supreme Court rendered a decision in a fraud case in which the victim cooperated with the police investigation after she realized the fraud had occurred. (Sup. Ct., Case No. 2017 (a) 1079 (Dec. 11, 2017) (click characters beside PDF icon at the bottom) (in Japanese).)

In this case, an unidentified person (the main perpetrator) persuaded the victim to join a false scheme for winning the lottery and asked her to send 1.2 million yen (about US$10,000) in cash to a specified address. Subsequently, the victim, who is in her 80s, realized the scheme was false and contacted the police. The victim cooperated with the police investigation of the case, pretending she still believed in the scheme. The defendant joined the unidentified person in the scheme after the victim realized the fraud had occurred and took on the role of receiving a box at the specified address. The victim sent an empty box to that address, and then the police arrested the defendant for attempted fraud when he received the box. (Id.; Penal Code, Act No. 45 of 1907, amended by Act No. 72 of 2017, arts. 44, 60, 246 & 250; English translation of Penal Code, Act No. 45 of 1907, Japanese Law Translation website (does not reflect amendments following Act No. 54 of 2007).)

The Fukuoka District Court acquitted the defendant because he had not participated in deceiving the victim. However, the Fukuoka High Court found the defendant guilty as a co-principal of attempted fraud. (Sup. Ct., Case No. 2017 (a) 1079.)

The Supreme Court upheld the High Court decision, stating that the defendant conspired with the unknown person after the person deceived the victim and was involved in the act of receiving money, which is one of the planned, coordinated acts that constitute a fraud. The Court stated, therefore, that the defendant is responsible for the attempted fraud, including the part in which he was not actively involved, as a co-principal. The Court stated that, in this case, the police tactics of having the victim act as if she was still deceived did not affect the defendant’s responsibility. (Id.)

Background

The number of cases of fraud identified by the police in Japan has increased since 2002. (Ministry of Justice, Crime Whitepaper, bk. 1, ch. 1, §§ 2 & 2(4) (2013), Ministry of Justice website (in Japanese).) The increase is due to “special fraud,” a type of fraud committed by strangers via phone, fax, or email, becoming more common. (Id.; Special Fraud (“Transfer Money” Fraud) (Dec. 28, 2017), Metropolitan Police Dept. website (in Japanese).) These special frauds mainly target elderly persons. (Headquarters Against Special Fraud, Regarding the Situation of Special Frauds During the First Half of 2017, at 2 (Aug. 4, 2017) (in Japanese), METROPOLITAN POLICE DEPT.) The case recently decided by the Supreme Court is considered an instance of special fraud.

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