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France: Major Reform of Penal Code

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(Sept 02, 2014) An important reform of the French Penal Code was signed into law on August 15, 2014. (Loi No. 2014-896 du 15 août 2014 relative à l'individualisation des peines et renforçant l'efficacité des sanctions pénales [Law No. 2014-896 of August 15, 2014, on the Individualization of Sentencing and Reinforcing the Efficacy of Penal Sanctions], LEGIFRANCE.)

This law has been controversial, and the Union pour un mouvement populaire (UMP, Union for a Popular Movement) opposition party challenged it before the Conseil constitutionnel (Constitutional Council) on the basis that parts of it were unconstitutionally vague and that it gave too much power to the juges d'application des peines (judges assigned to the application of sentences). However, the Conseil found that the reform was constitutionally valid. (Le Conseil constitutionnel valide la réforme pénale contestée par l'UMP [The Constitutional Council Validates the Penal Reform Contested by the UMP], LE MONDE (Aug. 7, 2014).)

The reform brings about several significant changes of French criminal law and criminal procedure, among which is the removal of minimum sentencing in favor of individualized sentencing. (Loi No. 2014-896, arts. 7-17.) Minimum sentencing was established under the current president's predecessor, Nicolas Sarkozy, in 2007 and 2011, and this new law essentially reverses those previous measures. (Ce que va changer la réforme pénale de Christiane Taubira [What Christiane Taubira's Penal Reform Will Change], LE FIGARO (July 17, 2014).)

Another important change is the establishment of measures to ensure that inmates are successfully reintroduced to society after their release from prison. (Id.) This includes the possibility that a judge might require that the inmate submit to certain restrictions, obligations, and supervision for a certain time after he/she is released from prison. (Id.; Loi No. 2014-896, arts. 39-48.)

The new law also introduces the contrainte pénale (penal constraint), which is a type of probationary sentence meant to replace incarceration; the subject must abide by a certain number of restrictions and is under continuous supervision, but is not in prison. (Loi No. 2014-896, arts. 19-23.)

Furthermore, the reform allows courts to pronounce a sentence in a separate session from the one in which it decided on the defendant's guilt. (Id. arts. 5-6.) This allows the court to examine the defendant's personality and situation to determine what the most appropriate sentence would be.

Finally, the reform includes measures aimed at better protecting the rights of victims and creates the possibility of a sentence including reparations for the victim. (Id. arts. 18, 26, & 27.)

Author: Nicolas Boring More by this author
Topic: Crime and law enforcement More on this topic
 Criminal procedure More on this topic
 Sentencing More on this topic
Jurisdiction: France More about this jurisdiction

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United Arab Emirates: Anti-Terrorism Law Approved

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(Aug 27, 2014) On August 21, 2014, the Prince of the United Arab Emirates approved Law 7-2014 on combating terrorism and terrorist activities. The new law is aimed at preventing citizens of the United Arab Emirates from joining or establishing terrorist organizations inside the country or abroad. (Anti-Terror Law Approved by the United Arab Emirates [in Arabic], AL BAYAN (Aug. 21, 2014).)

The Law includes 70 articles. It defines the act of terrorism as including any action or inaction constituting a crime under the provisions of the Law. Acts of terrorism under the Law include activities that pose a threat to the security of the state and the royal family; enticement to join terrorist organizations; and financing terrorist elements or organizations inside the country and abroad. (Id.)

The Law imposes tough penalties on violators, including the death penalty and life imprisonment. The death penalty may be imposed on individuals convicted of using terror to topple the royal family, to prevent the execution of the national Constitution, or to disturb the peace and national security. (Id.) Furthermore, the Law increases the penalty for hijacking an airplane to life imprisonment. However, if the act of hijacking causes the death or injury of any individuals, the penalty will be death. (Id.) The death penalty may also be imposed on individuals who establish or manage a terrorist organization inside the country or abroad. (Id.)

Author: George Sadek More by this author
Topic: Crime and law enforcement More on this topic
 Terrorism More on this topic
Jurisdiction: United Arab Emirates More about this jurisdiction

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Australia: Tax Office Releases Guidance Paper and Draft Rulings on Bitcoin

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(Aug 25, 2014) On August 20, 2014, the Australian Taxation Office (ATO) issued a guidance paper, a Goods and Services Tax (GST) Draft Ruling, and four draft taxation determinations on the taxation treatment of Bitcoin and other virtual currencies. The documents were released in time for taxpayers to take them into account in completing their 2013-2014 income tax returns and are intended to "provide certainty for the Australian community on the ATO's treatment of crypto-currencies within the current legislative framework." (Press Release, ATO, ATO Delivers Guidance on Bitcoin (Aug. 20, 2014). The Australian financial year runs from July 1 to June 30; income tax returns are due by October 31.

According to the guidance paper and rulings, Bitcoin transactions will be treated "like barter transactions with similar taxation consequences." (Id.) The guidance paper states that "[t]he ATO's view is that Bitcoin is neither money nor a foreign currency, and the supply of bitcoin is not a financial supply for goods and services tax (GST) purposes. Bitcoin is, however, an asset for capital gains tax (CGT) purposes." (Tax Treatment of Crypto-Currencies in Australia – Specifically Bitcoin, ATO (last modified Aug. 20, 2014).)

In general, where Bitcoin is used to purchase goods or services for personal use, there will be no income tax or GST implications, and any capital gain or loss from the disposal of Bitcoin will be disregarded, provided the cost of the Bitcoin is AU$10,000 (about US$9,318) or less. (Id.) Where taxpayers transact with a Bitcoin exchange, the tax consequences will depend on whether they "are acquiring or supplying the bitcoin as part of a business transaction or for investment or otherwise." (Id.)

Tax Treatment of Bitcoin in Business Transactions

When a business receives Bitcoin as payment for a good or service, it must record the fair market value of the Bitcoin in Australian dollars as part of its ordinary income. The fair market value can be obtained from, for example, a "reputable bitcoin exchange." (Id.) The business may be charged GST on the Bitcoin that it receives as payment. (Id.)

GST is also payable when a business supplies Bitcoin in the course of its operations, with the amount of GST calculated on the basis of the fair market value of the Bitcoin at the time of the transaction. Businesses that engage in Bitcoin mining must include any income derived from the transfer of the mined Bitcoin to a third party in their assessable income. The guidance paper also notes that there may be capital gains consequences from disposing of Bitcoin in the course of carrying on a business. (Id.)

Where a business uses Bitcoin to purchase business-related items, including trading stock, it will be able to claim a deduction based on the arms-length value of the item acquired. Where an employee receives Bitcoins from an employer as remuneration instead of Australian dollars, the payment is considered a fringe benefit for taxation purposes. (Id.)

Draft Detailed Documents

Detailed information on these topics is provided in the following draft documents issued by the ATO. People are able to submit comments on the drafts until October 3, 2014. The guidance paper will be updated should there be any changes made to the documents.

According to media reports, about 1,000 Australian businesses currently accept Bitcoin as payment. Many of these businesses had apparently been hoping that it would be treated as money or foreign currency under tax law, as this would make record-keeping and taxation requirements easier and avoid possible double taxation resulting from the application of GST. (Will Ockenden, Bitcoin: Australia's Tax Office Announces It Will Not Treat Popular DigitalCurrency as Money, ABC NEWS (Aug. 21, 2014).)

The chair of Australian Digital Currency Commerce Association, Ron Tucker, stated that the guidance from the ATO was disappointing and "very stifling for emerging Australian digital currency businesses and the industry as a whole." (Id.) He also stated, "[t]his is quite a retrograde step and at odds with the approach taken by other countries." (Supratim Adhikari, Bitcoin to Cop GST: ATO, AUSTRALIAN (Aug. 21, 2014).) He warned that the draft rulings could potentially send Bitcoin businesses offshore. (Id.)

Similarly, Jason Williams, president of the Bitcoin Association of Australia, said that the guidance was "disappointing" and that Bitcoins were clearly being used as money. He further stated, "[a]pplying double GST to some bitcoin transactions will adversely affect investment in the bitcoin economy and may push bitcoin businesses to relocate to other, more favourable jurisdictions." (Esther Han, Australian Tax Office Decides Bitcoins Are Assets, Not Currency, SYDNEY MORNING HERALD (Aug. 21, 2014).)

Author: Kelly Buchanan More by this author
Topic: Currency More on this topic
 Income tax More on this topic
 Internet More on this topic
 Taxation More on this topic
 Value-added tax More on this topic
Jurisdiction: Australia More about this jurisdiction

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Liberia: Army Orders Border Crossers from Sierra Leone Shot Due to Fear of Ebola

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(Aug 22, 2014) On August 15, 2014, Colonel Eric W. Dennis, Deputy Chief of Staff of Liberia's armed forces, directed soldiers on the border in two counties in the western part of the country to shoot at anyone trying to enter from Sierra Leone. This move comes as a result of the Ebola epidemic; the virus has infected people in Liberia and Sierra Leone, as well as Guinea and Nigeria. (C.Y. Kwanue, AFL Ordered to Shoot Anyone Crossing Borders at Night as Dep COS Puts Army on High Alert, DAILY OBSERVER ONLINE (Aug. 18, 2014), Open Source Center online subscription database, Document No. AFR2014081851706746.)

Liberia's Bureau of Immigration and Naturalization has reported that people are sneaking across the Liberia/Sierra Leone border during the nighttime hours. A local commander from the border region noted that individuals were using makeshift canoes to cross the border at about 35 places where the border is porous; he expressed concern that officials do not know the health status of those entering the country in this manner. (Id.)

Dennis's order specifically was for soldiers to aim at the legs of those crossing illegally. He said, "I want to hear that someone gets a bullet in their leg. First, you need to send a warning shot, and then after you burst their legs, the affected person/s will realize that he has violated a standing order or a law of another country." (Id.) He stressed that the border rules were important to protect public health and exhorted soldiers on the border not to take bribes or allow people to cross into the country. (Id.)

Other Measures Taken

In an effort to stop the spread of the epidemic, Liberian President Ellen Johnson Sirleaf ordered many of the country's borders closed on July 27. (Ebola Forces Liberia to Shut Border Crossings, AL JAZEERA (July 28, 2014).)

In addition, on July 30, Liberia announced a national plan of action with a goal of "No New Cases." The plan included limits on official travel, the closing of public facilities for a day so that they could be disinfected, the suspension of school operations until further notice, and the closing of markets in border areas. Non-essential government workers were instructed to stay home. (Press Release, Government of Liberia Launches National Action Plan Against the Ebola Viral Disease; Initially Contributes US$5 Million Towards the Fight and Announces Additional Stringent Measures (July 30, 2014), Executive Mansion of Liberia website.)

Furthermore, the government announced it was considering quarantining some communities and that if such quarantine measures are announced, "only health care workers will be permitted to move in and out of those areas." (Id.) Subsequently, a part of Liberia's capital, Monrovia, was placed under quarantine and a night curfew was imposed. (Ebola Crisis: Liberian Troops Impose Slum Quarantine, BBC NEWS (Aug. 20, 2014).)

Declaration of State of Emergency

On August 6, Johnson Sirleaf declared the country to be in a state of emergency. She stated:

The scope and scale of the epidemic, the virulence and deadliness of the virus now exceed the capacity and statutory responsibility of any one government agency or ministry. The Ebola virus disease … [is now] affecting the existence, security, and well-being of the Republic amounting to a clear and present danger. The Government and people of Liberia require extraordinary measures for the very survival of our state and for the protection of the lives of our people. (Statement on the Declaration of a State of Emergency by President Ellen Johnson Sirleaf, R.L. (Aug. 6, 2014), Executive Mansion of Liberia website.)

She then went on to state that, relying on powers outlined in article 86 of the Constitution, she was declaring a 90-day state of emergency, effective immediately. During that time, she added, "the Government will institute extraordinary measures, including, if need be, the suspensions of certain rights and privileges." (Id.; Constitution of the Republic of Liberia (1986), Ch. IX, art. 86, available at World Intellectual Property Organization website.)

Regional Initiative

Liberia also recently signed, together with Guinea, the Ivory Coast, Sierra Leone, and the World Health Organization, a joint declaration on the eradication of Ebola in West Africa. It is designed to promote cooperation in ending the epidemic. (Joint Declaration of Heads of State and Government of the Mano River Union for the Eradication of Ebola in West Africa (Aug. 1, 2014), Executive Mansion of Liberia website.)

Author: Constance Johnson More by this author
Topic: Emergency management More on this topic
 National security More on this topic
 Public health More on this topic
Jurisdiction: Liberia More about this jurisdiction

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India: Possible Amendment of IT Law to Address Cybercrimes Against Women

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(Aug 21, 2014) It was reported on August 15, 2014, that the Indian government has taken preliminary steps to introduce amendments to India's information technology law that would specifically treat cybercrimes against women. The move comes in the wake of reports of men recording rapes of women and girls with their smartphones and using the recordings to make the victims keep silent. (Rama Lakshmi, Video Recordings of Gang Rapes on Rise in India in Effort to Shame, Silence the Victim, WASHINGTON POST (Aug. 14, 2014); Three More Gang Rapes, One of a 7-year-Old Girl: Uttar Pradesh Is India's Shame, AMERICAN BAZAAR (June 25, 2014).)

The Information Technology Act 2000, as amended in 2008, provides for a punishment of imprisonment of up to three years or a fine of up to two lakh rupees (about US$3,300), or both, for anyone who "intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person … ." An explanatory section defines the terms used in the above article, e.g., "capture," "transmit," and "private area." (The Information Technology (Amendment) Act, 2008 (ITAA) (Feb. 5, 2009), THE GAZETTE OF INDIA, No. 13 (Feb. 5, 2009), § 32 [inserting art. 66E in the principal Act]; Information Technology Act 2000, No. 21 (June 9, 2000), Department of Electronics & Information Technology.)

There is also a prescription against the publication or transmission, or the causing to be published or transmitted, in electronic form of "any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it." (ITAA, amending § 67 of the principal Act.) The punishment for offenders on their first conviction is imprisonment for a term of up to five years and a fine of up to five lakh rupees; a second or subsequent conviction will incur a punishment of imprisonment for up to five years (the amendment reduced the term of imprisonment of up to ten years found in the principal Act) and a fine of up to ten lakh rupees. (Id.)

If the prurient materials contain sexually explicit acts or conduct, the punishment will be up to five years' imprisonment and a fine of up to ten lakh rupees; a punishment of seven years' imprisonment and a fine of up to ten lakh rupees may be imposed in the event of a second or subsequent conviction. (ITAA, § 32, inserting § 67A in the principal Act.) A separate provision is applicable to similar crimes involving the depiction of persons under 18 years of age in electronic form; the same possible punishments and fines may apply upon conviction. (Id., inserting § 67B in the principal Act.)

A "communication device" is defined as "cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image." (Id. § 4B, inserting clause (ha) in § 2(h) of the principal Act.)

However, there is no provision in either the original Act or its 2008 amendment that explicitly addresses the capture in electronic form of violent acts such as rape.

Author: Wendy Zeldin More by this author
Topic: Commodities markets More on this topic
 Crimes against children More on this topic
 Crimes against women More on this topic
 Cybercrime More on this topic
 Information technology More on this topic
Jurisdiction: India More about this jurisdiction

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