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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.

Liechtenstein: Government Adopts Consultation Report on Draft Blockchain Act

(Sept. 20, 2018) On August 28, 2018, the government of Liechtenstein adopted a consultation report on a proposed Blockchain Act. The goal of the Blockchain Act is to take advantage of the potential of blockchain technology, create legal certainty for market participants, protect users of blockchain technology from potential abuse, and reduce potential reputation risks for Liechtenstein. The deadline for comments on the consultation report (consultation period) is November 16, 2018. The consultation procedure is a preliminary voluntary step in the legislative process before the draft is submitted to Parliament for debate. (Ministerium für Präsidiales und Finanzen [Ministry for General Government Affairs and Finance], Vernehmlassungsbericht der Regierung betreffend die Schaffung eines Gesetzes über auf vertrauenswürdigen Technologien (VT) beruhende Transaktionssysteme (Blockchain-Gesetz; VT-Gesetz; VTG) und die Abänderung weiterer Gesetze. [Consultation Report on Enacting an Act on Transaction Systems Based on Trustworthy Technologies (TT) (Blockchain Act; TT Act; VTG) and the Amendment of Further Acts], Aug. 28, 2018, Government Chancellery website; Press Release, Government of the Principality of Liechtenstein, Consultation Launched on Blockchain Act (Aug. 29, 2018), Government website.)

Scope of Application

The proposed Blockchain Act applies to all trustworthy technologies (TT) service providers, unless the TT system is available only to a closed user group. (Consultation Report, supra, at 138 (quoting Blockchain Act arts. 2 & 4).) “Trustworthy” technologies are defined as “technologies through which the integrity of tokens, their clear allocation to the person in possession as well as their use without an operator can be ensured.” (Id. at 138 (quoting Blockchain Act art. 3, para. 1).) The rules on the control and use of tokens are only applicable when tokens are generated or issued by a TT service provider who is subject to Liechtenstein law, or when the Blockchain Act declares them applicable. (Id. at 144 (quoting Blockchain Act art. 11).) The Consultation Report states that the term “trustworthy technologies” was chosen as a technology-neutral term to encompass a wide range of technology options instead of the narrower terms ‘blockchain” and “distributed ledgers.” Furthermore, technology-neutral terms ensure that the law will not be outdated after a few years and only have a limited scope. (Id. at 40.)

Tokens and Related Concepts

The Consultation Report uses the word “tokens” to describe all types of technical implementation methods of the blockchain technology, even if the system does not actually use a “token” to implement it. “Token” is understood in an abstract and not in a technological sense. (Id. at 46.) The draft Blockchain Act defines “tokens” as “information on a TT-system that can represent transferrable claims or rights of membership vis-à-vis a person, rights in rem, or other absolute or relative rights, and that secures the attribution to one or more public keys.” (Id. at 139 (quoting Blockchain Act art. 5, para. 1, no. 1).) A token functions as a “container” that represents all types of rights on a TT-system. “Empty containers,” meaning tokens like Bitcoin that do not represent a specific right, are also possible. (Id. at 43.) The report states that the Blockchain Act serves as a framework law for all types of token-based applications. (Id. at 29.) It was decided to establish autonomous rules for ownership of tokens and TT-systems instead of modifying the existing property rules. (Id. at 47.)

A “public key” is defined as “consisting of a series of characters that constitute a specific publicly accessible address in a TT-system to which a token can be clearly attributed.” (Id. at 139 (quoting Blockchain Act art. 5, para. 1, no. 2) (all translations by author).) A “private key” on the other hand consists of a series of characters that, by themselves or together with other private keys, enable the use and transfer of the public key. (Id. at 139 (quoting Blockchain Act art.  5, para. 1, no. 3).) A transfer of a token by the person who owns the private key causes a transfer of the right that is represented by the token, meaning the online transfer precedes the offline transfer. (Id. at 49; id at 141 (quoting Blockchain Act arts. 6, 7).)

General Requirements for Persons Involved in Token Transactions

The draft Blockchain Act introduces a number of requirements for persons involved in token transactions. In general, TT services may be provided only by persons who have full capacity to act and are trustworthy. (Id. at 144 (quoting Blockchain Act art. 13, para. 1).) Trustworthiness exists when a person has not been convicted by a court of fraudulent bankruptcy or similar offenses and there are no other reasons that would give rise to serious doubts regarding the provider’s trustworthiness. (Id. at 145 (quoting Blockchain Act art. 13, para. 3).) In addition, TT service providers may provide services only if they have a clear organizational structure, including procedures to deal with conflicts of interest; written internal control mechanisms; and a minimum capital of 100,000 Swiss francs (CHF) (about US$102,843) or equivalent collateral. (Id. at 145 (quoting Blockchain Act art. 13, para. 4).)

Specific Requirements for Selected TT Service Providers

For selected TT service providers, in particular token issuers, token generators, physical validators, TT custodians, and TT protectors, the draft Blockchain Act sets out additional requirements and establishes a duty to register with the Financial Market Authority of Liechtenstein (FMA).

Token Issuers

A “token issuance” is defined as the “public offering of a token.” (Id. at 139 (quoting Blockchain Act art. 5, para. 1, no. 5).) Token issuers (Token Emittenten) are the “persons who perform the token issuance in their own name or on a professional basis in the name of a third party.” (Id. at 140 (quoting Blockchain Act art. 5, para. 1, no. 8).) They must set up appropriate internal control mechanisms to

  • ensure the disclosure of basic information as defined in articles 28–32 during the token issuance and for at least ten years after the issuance;
  • ensure the proper execution of the token issuance;
  • prevent the repeat token issuance for the same rights;
  • note a previous token issuance for a subsequent issuance on related rights; and
  • ensure business continuity in the case of disruptions during the token issuance. (Id. at 146 (quoting Blockchain Act art. 14).)

The rules are similar to the ones found in the Securities Prospectus Act, which may therefore be used as an additional interpretation aid. (Id. at 68; Wertpapierprospektgesetz [WPPG] [Securities Prospectus Act], May 23, 2007, LIECHTENSTEINISCHES LANDESGESETZBLATT NUMMER [LGBl.-Nr.] [LIECHTENSTEIN OFFICIAL LAW GAZETTE NO.] 2007.196, LILEX website.)

Token Generators

“Token generators (Token Erzeuger)” are defined as “persons who generate one or more tokens and make them available on a TT-system.” (Id. at 140 (quoting Blockchain Act art. 5, para. 1, no. 9).) Token generators must ensure by appropriate means that the transfer of the token causes the transfer of the represented right and that any other transfer of the represented right is not possible. (Id. at 142 (quoting Blockchain Act art. 7, para. 2).) The law does not specify what the appropriate means are. (Id. at 49 et seq.) In addition, token generators must establish internal control mechanisms to ensure the technical operability of the generated tokens during the token generation and for the following three years. (Id. at 148 (quoting Blockchain Act art. 19).)

Physical Validators

“Physical validators” are defined as “persons who ensure the enforcement of property rights within the meaning of property law that are represented by the tokens on a TT-systems.” (Id. at 140 (quoting Blockchain Act art. 5, para. 1, no. 11).) They must establish internal control mechanisms to ensure at all times

  • that the person initiating the token generation is the actual owner of the object at the time of the token generation;
  • that a collision of rights concerning the same object is avoided; and
  • that they will be held liable if the rights guaranteed by them cannot be enforced as stipulated in the contract. They must also ensure that the owner of the token has a direct claim against the insurance company of the physical validator or against the insurance for the specific object. (Id. at 148 (quoting Blockchain Act art. 20).)

TT Custodians

“TT custodians” (VT Verwahrer) are defined as “persons who provide custodial services for private keys of third parties on a TT-system.” (Id. at 140 (quoting Blockchain Act art.5, para. 1, no. 10).) They must establish internal control mechanisms to ensure

  • the establishment of appropriate security measures that prevent the loss or misuse of private keys by unauthorized third parties;
  • asset separation between the business assets of the TT custodian and the private keys of the customers; and
  • business continuity in the case of disruptions. (Id. at 147 (quoting Blockchain Act art. 15).)

TT Protectors

“TT protectors” are defined as “persons who hold tokens as a trustee in their own name on behalf of third parties.” (Id. at 140 (quoting Blockchain Act art. 5, para. 1, no. 12).) They are required to obtain an authorization according to the Trustee Act or the Banking Act. (Id. at 147 (quoting Blockchain Act art. 18); Treuhändergesetz [TrHG] [Trustee Act], Nov. 8, 2013, LGBl.-Nr. 2013.421, as amended, LILEX website; Gesetz über die Banken und Wertpapierfirmen [Bankengesetz] [BankG] [Act on Banks and Investment Firms] [Banking Act], Oct. 21, 1992, LGBL.-Nr. 1992.108, as amended, LILEX website.)

Duty to Register

The following persons must register with the Financial Market Authority of Liechtenstein (FMA) if they intend to provide TT services on a professional basis in Liechtenstein:

  • Token issuers
  • TT protectors
  • TT custodians;
  • TT exchange platforms
  • Physical validators
  • TT identity service providers as defined in article 5, paragraph 1, number 16 of the Blockchain Act. (Id. at 159 (quoting Blockchain Act art. 36, para. 1).) Other TT service providers may register with the FMA on a voluntary basis. (Id. at 159 (quoting Blockchain Act art. 36, para. 2).) Registered service providers are to be listed in a publicly accessible TT service provider registry by the FMA. (
  • Id. at 161 & 164 (quoting Blockchain Act arts. 37, 41, respectively).)

Protections in Bankruptcy Proceedings

Tokens that are held by TT protectors or private keys that are held by TT custodians do not become part of the bankruptcy estate when the TT service provider becomes bankrupt and are to be held separately for the benefit of the customer. (Id. at 150 et seq. (quoting Blockchain Act arts. 24, 25).)

Fines

TT service providers that do not comply with the obligations set out in the draft Blockchain Act are subject to a fine of CHF20,000–30,000 (about US$20,570–30,853) depending on the type of violation. (Id. at 169 et seq. (quoting Blockchain Act art. 49).)

Due Diligence Act

Finally, the Consultation Report proposes amendments to the Due Diligence Act. The due diligence obligations codified in the Due Diligence Act serve to combat money laundering, organized crime, and terrorist financing. The Consultation Report includes token issuers, TT protectors, physical validators, TT custodians, TT identity service providers, and TT exchange office (bureau de change) operators among the persons subject to the due diligence requirements. (Id. at 173 (quoting Blockchain Act art. 3); Gesetz über berufliche Sorgfaltspflichten zur Bekämpfung von Geldwäscherei, organisierter Kriminalität und Terrorismusfinanzierung [Sorgfaltspflichtgesetz] [SPG] [Act on Professional Due Diligence to Combat Money Laundering, Organized Crime, and Terrorist Financing [Due Diligence Act] [DDA], Dec. 11, 2008, LGBl.-Nr. 2009.047, as amended, LILEX website.)

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China: Central Government Bans Sale of E-Cigarettes to Minors

(Sept. 19, 2018) On August 31, 2018, two Chinese central government regulators, the State Administration for Market Regulation (SAMR) and the State Tobacco Monopoly Administration (STMA, also known as China Tobacco), jointly issued a circular to ban the sale of electronic cigarettes to minors. (Guojia Shichang Jiandu Guanli Zongju, Guojia Yancao Zhuanmai Ju Guanyu Jinzhi Xiang Weichengnian Chushou Dianziyan de Tonggao [Circular of the SAMR and the STMA on Prohibiting the Selling of E-Cigarettes to Minors] (Aug. 31, 2018), China Tobacco website.)

The Circular cites the World Health Organization’s Framework Convention on Tobacco Control, to which China became a party in 2006, and the Chinese Law on Protection of Minors. The Convention prohibits “the manufacture and sale of sweets, snacks, toys or any other objects in the form of tobacco products which appeal to minors.” The domestic law prohibits the sale of tobacco and alcohol to minors. (Id.)

In China, stationary stores near primary and secondary schools were reportedly selling e-cigarettes to students. There were even “student e-cigarettes” sold on online e-commerce platforms. (Id.) Noting the safety and health risks of e-cigarettes, the Circular prohibits all market entities from selling electronic cigarettes to minors, who, according to article 17 of China’s General Rules of Civil Law, are natural persons under the age of 18. (Id.; Zhonghua Renmin Gongheguo Minfa Zongze [PRC General Rules of Civil Law] (adopted by the National People’s Congress on Mar. 15, 2017, effective Oct. 1, 2017), NPC website, English translation available on the Diritto Mercato Tecnologia website.) Moreover, the Circular recommends that e-commerce platforms remove e-cigarette products labeled with the words “student” or “minor,” sanction relevant online stores, and take measures to block associated keywords. The Circular, however, does not specify any penalties that may be imposed on those violating the ban. (Id.)

Background

China has not yet passed a comprehensive tobacco control law on the national level. In 2011, the Ministry of Health (now National Health Commission) issued rules in implementing the State Council Regulations on Public Places Sanitation Administration, which contain a provision prohibiting smoking in specified indoor public spaces, such as hotels, restaurants, movie theaters, museums, hospital waiting rooms, and public transportation waiting rooms. (Ministry of Health, Implementation Rules on Regulations on Public Places Sanitation Administration (Mar. 10, 2011, effective May 1, 2011) art. 18, Tobacco Control Laws website; State Council, Regulations on Public Places Sanitation Administration (Apr. 1, 1987, effective the same day), Tobacco Control Laws website.)

The manufacture, sale, and use of e-cigarettes in China have largely been unregulated, despite the rapid growth of the country’s e-cigarette industry and the rising popularity of e-cigarettes in recent years. Before the circular was issued, relevant government agencies appeared to be reluctant to take the lead in regulating e-cigarettes. (Eric A. Feldman & Chai Yue, E-Cigarette Regulation in China: The Road Ahead (Faculty Scholarship Paper 1704) (2016), Penn Law: Legal Scholarship Repository website.)

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United Kingdom: Supreme Court Rules on Widowed Parent’s Allowance for the Surviving Unmarried Partner

(Sept. 18, 2018) On August 30, 2018, the Supreme Court of the United Kingdom issued a ruling stating that “section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 [the Act] is incompatible with article 14 of the ECHR [European Convention on Human Rights], read with article 8, insofar as it precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased.” (In the Matter of an Application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] UKSC 48, para. 45, UK Supreme Court website; Social Security Contributions and Benefits (Northern Ireland) Act 1992, UK legislation.gov website; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, arts. 8 & 14, Nov. 4, 1950, ETS 5, European Court of Human Rights website.) The declaration places pressure on the government to amend or repeal the incompatible sections of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 in order to provide equal opportunity under the law for both previously married and unmarried people who have lost their partners to be able to access financial support.

Section 39A of the Act, as amended by the Civil Partnership Act 2004, states that an individual is entitled to a widowed parent’s allowance solely if his or her deceased spouse or civil partner meets several conditions. (Social Security Contributions and Benefits (Northern Ireland) Act 1992, § 39A, legislation.gov website; Civil Partnership Act, 2004, sched. 24, pt. 5, legislation.gov website.) The Act, however, makes no mention of those couples who had children and had been cohabiting at the time one of the partners died. Siobhan McLaughlin, the applicant in the case, had been living with John Adams, her partner and the father of her four children, for 23 years when he died on January 28, 2014. (Siobhan McLaughlin [2018] UKSC 48, para. 2.) Adams met all of the requirements during his life for McLaughlin to be able to claim bereavement payments and Widowed Parent’s Allowance, bar one: Adams and McLaughlin had never married. (Id. para. 2.) Having been denied both payments by the Northern Ireland Department of Communities, McLaughlin applied for judicial review of the decision, claiming that the decision was incompatible with the ECHR. (Id. para. 3.)

Lady Hale, in writing the majority judgment, applied reasoning accepted by Lord Nicholls of Birkenhead and used by Lord Bingham in a previous case (M v. Secretary of State for Work and Pensions [2006] 2 AC 91, para. 17) to rule that Widowed Parent’s Allowance is one of the ways in which “the state evinces respect for children and the life of the family of which they are part” (Siobhan McLaughlin [2018] UKSC 48, para. 19), so Widowed Parent’s Allowance falls within the ambit of article 8 of the ECHR. (Id. para. 22.) Furthermore, in analyzing whether the actions of the Northern Ireland Department for Communities infringed McLaughlin’s article 14 rights, Hale took a purposive approach to interpreting Widowed Parent’s Allowance:

Widowed parents’ allowance is only paid because the survivor is responsible for the care of children who were at the date of death the responsibility of one or both of them. Its purpose must be to benefit the children. The situation of the children is thus an essential part of the comparison. And that situation is the same whether or not the couple were married to one another. It makes no difference to the children. But had the couple been married, their treatment would be very different: their household would have significantly more to live on while their carer is in work.” (Id. para. 27.)

Consequently, Hale ruled that denying McLaughlin the Allowance because she was unmarried infringed her article 14 rights. (Id. para. 42.)

Hale did acknowledge that the government had a legitimate aim in denying McLaughlin the payments—“to promote the institutions of marriage and civil partnership by conferring eligibility to claim only on the spouse or civil partner of the person who made the contributions.” (Id. para. 36.) However this, on its own, was insufficient to justify the infringement, as denying McLaughlin the payments was “manifestly” not a proportionate means of achieving that legitimate aim. (Id. paras. 38 & 39.)

Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.  

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Italy: Constitutional Court Rules on Constitutionality of Prison Benefits Provisions

(Sept. 17, 2018) On July 11, 2018, the Italian Constitutional Court issued a decision on the constitutional legitimacy of article 58-quater of Law No. 354 of 1975 regarding prison benefits for persons sentenced to life imprisonment for certain crimes. (Decision No. 149 of July 11, 2018, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE, G.U.] (July 18, 2018) (in Italian), G.U. website.)

Background of the Case

By a resolution passed on April 28, 2017, the Surveillance Tribunal of Venice requested that the Italian Constitutional Court rule on the issue of the constitutionality of article 58-quater, para. 4 of Law No. 354 of July 26, 1975, Provisions on Penitentiary Organization and on the Implementation of Private and Restrictive Measures on Freedom. (Legge 26 luglio 1975, n. 354, Norme sull’ordinamento penitenziario e sulla esecuzione delle misure privative e limitative della liberta’, G.U. No. 212, Aug. 9, 1975.) In its original version, this article (Legge 26 luglio 1975 n. 354, article 58-quater, para. 4, OP Italiano website) provided that persons convicted of kidnapping for purposes of terrorism or subversion and kidnapping for purposes of robbery or extortion who caused the death of the victim were not eligible for the penitentiary benefits (assignment to outside work, premium permits, and measures alternative to detention) set forth in article 4-bis of Law No. 354 of 1975 unless the convicted persons effectively served at least two-thirds of the sentence or at least 26 years if condemned to life imprisonment without parole. (CODICE PENALE [PENAL CODE], art. 289-bis & art. 630, Altalex website; Legge 26 luglio 1975, n. 354.)

The Court examined whether the challenged provision violated articles 3 and 27, para. 3 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, Comparative Constitutions Project website.) Article 3 establishes that all citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, or personal and social conditions. Article 27, para. 3 states that punishments may not be inhuman and must aim at reeducating the convicted.

Reasoning of the Court

The Court noted that the referring Venice court had received a request for the prison benefit of limited freedom from an inmate convicted of kidnapping for purposes of extortion that resulted in the death of the victim. (Decision, considerations of fact 2, para. 1.) The Venice court had also noted that the inmate had developed a critical appreciation of the seriousness of the crime he had committed that had led to an “exceptional commitment to university studies” and “invariably regular good conduct” within the penitentiary, where he performed beneficial work. (Id. considerations of fact 2, para. 2.)  In addition, the Venice court had highlighted that the inmate was offered an employment contract for an outside job subject to a semifreedom prison benefit (id.) and ruled that article 4-bis of Law No. 354 of 1975 forbade the court from granting the benefit requested by the inmate. The court consequently asked the Constitutional Court to rule on the constitutionality of the legal provision in question. (Id. considerations of fact 2, paras. 3–4.)

The Constitutional Court held that article 27, para. 3 of the Constitution prevailed over article 4-bis of Law No. 354 of 1975, as the constitutional goal of the reeducational purpose of criminal punishments trumps the legislative purpose of crime prevention enshrined in article 4-bis of Law No. 354. (Id. considerations of fact 2.1, para. 1.)

It its reasoning, the Court also took into consideration the gravity of the crimes for which the inmate in the case under review was convicted. (Id. considerations of fact 2.1, para. 6.) The Court also mentioned that Law No. 354’s purpose was to fight organized crime, but that successive legislation favored the gradual reinsertion into society of convicted persons through the expanion of benefits for those who demonstrated their participation in rehabilitative work. (Id. considerations of law 2.1, para. 1.) The Court recalled that in 1991 the legislature reacted to the growing menace from organized mafia crime by imposing restrictions on convicted felons’ access to prison benefits, and that article 4-bis reflects such legislative intent. (Id. considerations of law 2.1, paras. 2–3.) However, the Court noted that successive legislative amendments to article 4-bis introduced the possibility for those convicted of certain serious crimes to receive prison benefits in exchange for collaboration with the judicial authorities. (Id. considerations of law 2.1, para. 5.) Nevertheless, this legislative trend to expand benefits to such persons excluded those benefits covered by the aforementioned article 58-quater. (Id. considerations of law 2.2, para. 1.) The Court mentioned that article 58-quater did not include the exception of collaboration with the judicial authorities for those convicted under articles 289-bis and 630 of the Penal Code. (Id. considerations of law 2.2, para. 4.)

The Court also reviewed other criminal legislation to determine if persons sentenced to life imprisonment enjoyed the prison benefits that article 4-bis of Law No. 354 of 1975 denied to those convicted under articles 289-bis and 630 of the Penal Code. (Id. considerations of law 3, para. 2.) The Court found that the majority of those sentenced to life imprisonment under other legislation are eligible for certain penitentiary benefits, including outside work after ten years of imprisonment; premium permits based on expiation of the penalty; semifreedom after twenty years of imprisonment; parole after 26 years of imprisonment; or conditional freedom in certain situations. (Id. considerations of law 3, para. 3.)

The Court considered that this disparity in treatment by the legislation runs counter to articles 3 and 27, para. 3 of the Constitution, due to their intrinsic unreasonableness relative to the constitutional goal of the necessary reeducational function of the sentence. (Id. considerations of law 4.)

The Court added that the automatic character of the temporal prohibition to access penitentiary benefits precludes the judge from evaluating individually the reeducational path followed by those sentenced to life imprisonment, as required by the Constitution and established by settled case law of the Constitutional Court. (Id. considerations of law 7, para. 2.) Moreover, such judicial function required by the Constitution is impeded by article 4-bis of Law No. 354 of 1975 when the respective judge has, on the basis of the merits of the case, already established that the convicted person no longer constitutes a danger to society. (Id. considerations of law 7, para. 4.)

Holding of the Court

In consequence, the Constitutional Court declared the unconstitutionality of the part of article 58-quarter, para. 4 of Law No. 354 of 1975 applying to persons sentenced to life imprisonment without parole for the crime established in article 630 of the Penal Code (kidnapping for the purposes of robbery or extortion resulting in the death of the kidnapped victim). (Id. holding 1.)

As a result of its first declaration, the Court also declared the unconstitutionality of the part of article 58-quarter, para. 4 of Law No. 354 of 1975 applying to persons sentenced to life imprisonment without parole for the crime established in article 289-bis of the Penal Code (kidnapping for the purposes of terrorism or subversion resulting in the death of the kidnapping victim). (Id. holding 2.)  

Persons convicted for the crimes established in articles 289-bis and 630 of the Penal Code are therefore now eligible for the penitentiary benefits established in article 4-bis of Law No. 354 of 1975 (assignment to outside work, premium permits, and measures alternative to detention).

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United Kingdom: Supreme Court Rules on Heterosexual Civil Partnerships

(Sept. 14, 2018) On June 27, 2018, the Supreme Court of the United Kingdom issued a declaration that “sections 1 and 3 of [the Civil Partnership Act 2004, (CPA)], to the extent that they preclude a different sex couple from entering into a civil partnership, are incompatible with article 14 of [the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)] taken in conjunction with article 8 of the Convention.” (Steinfeld and Keidan, R (on the Application of) v. Secretary of State for International Development (in Substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32, para. 62, BAILII website; CPA 2004, §§ 1 & 3, UK legislation.gov website; European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, arts. 8 & 14, Nov. 1950, ETS 5, European Court of Human Rights website.) The declaration places significant pressure on the government to amend or repeal the incompatible sections of the CPA 2004 in order to provide equal opportunity under the law for both same-sex and different-sex couples to become civil partners.

Prior to 2013, the only route for same-sex couples to have their relationship acknowledged before the law was by registering as civil partners in accordance with section 1 of the CPA. (CPA 2004, § 1.) The institution of marriage was reserved purely for heterosexual couples. After the passage of the Marriage (Same Sex Couples) Act 2013 (MSSCA), however, the ability to get legally married was extended to same-sex couples. (MSSCA 2013, legislation.gov website.) This, however, did not lead to the amendment or repeal of the CPA, as a result of which, same-sex couples were faced with a choice about whether they wanted to have their relationships legally recognized through marriage or civil partnership.

As pointed out by the plaintiffs in the recent case, the same choice does not exist for heterosexual couples. The CPA defines a civil partnership as “a relationship between two people of the same sex” (CPA 2004, § 1), meaning that a heterosexual couple must get married in order for their relationship to be legally recognized. The plaintiffs, however, did not wish to get married because of the “patriarchal nature” of the institution of marriage, but did want the legal protections that come from having one’s relationship formally recognized, such as property rights if one partner dies. (Cecilia Lei, U.K. Supreme Court Rules It’s Unfair to Offer Civil Unions Only to Same-Sex Couples, NATIONAL PUBLIC RADIO (June 27, 2018).)

Lord Kerr, in writing the judgment, noted that,

[w]hen Parliament enacted MSSCA it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though, we were told, it was recognised at that time that this would bring about an inequality of treatment between same sex partners and those of different sexes and that this inequality was based on the difference of sexual orientation of the two groups. (Steinfeld and Keidan, [2018] UKSC 32, para. 7.)

The government argued that it delayed deciding one way or the other—either abolishing or extending civil partnerships to all couples—because it wished “to wait for a time until further hard evidence was available to enable it to take a considered view as to what to do.” (Id. para. 33.) However, Kerr dismissed this approach as indicative of, “at best, an attitude of some insouciance.” (Id.) Kerr also went on to explain that he did not find that the government had a legitimate aim for infringing on the human rights of heterosexual couples because the legislative goal of extending the period for information gathering “cannot be characterised as a legitimate aim” (id. para. 42); there was a readily available, less intrusive method for achieving the required goal that the government could, and should, have used (id. para. 50); and finally, even if one allowed the government’s aim to be legitimate, a fair balance had not been struck between the rights of the discriminated and the interests of the community that the government claimed to represent (id. paras. 51–52).

Prepared by Ben Hills, Law Library intern, under the supervision of Clare Feikert-Ahalt, Senior Foreign Law Specialist.

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