Library of Congress Global Legal Monitor
On January 12, 2022, Legislative Decree No. 213 (L.D. No. 213) entered into effect in Italy, amending Legislative Decree No. 35 of March 15, 2011 (L.D. No. 35) and implementing EU Directive 2019/1936 on road infrastructure safety.
Application of New Road Safety Procedures
L.D. No. 213 sets forth procedures on road safety impact assessments for infrastructure projects, road safety checks, road safety inspections, and the assessment of road safety at the network level. (L.D. No. 35 of March 15, 2011, art. 1, substituted by L.D. No. 213, art. 1(1).)
L.D. No. 213 applies to roads that are part of the Trans-European Transport Network, motorways, and main roads, whether in the planning stage, under construction, or already open to traffic. (L.D. No. 213, art. 1(2).) L.D. No. 213 also applies to roads and road infrastructure projects in service areas located outside urban areas that have received European Union (EU) funding, except roads not open to general car traffic, such as cycle paths, or access roads to industrial, agricultural, or forestry sites. (Art. 1(3).)
National Digital Archive of Public Works
The National Digital Archive of Public Works (È istituito l’Archivio Informatico delle Opere Pubbliche, AINOP) constitutes the national spontaneous reporting system, accessible online to all road users, that has been established to facilitate the collection of detailed information on events transmitted by road users and vehicles related to road safety that users perceive as a real or potential risk to the safety of the road infrastructure. (L.D. No. 35 of 2011, art. 6-quinquies(1), added by L.D. No. 213, art. 5(6).)
Components of Studies and Assessments of Periodic Road Infrastructure
Periodic road safety assessments must contain provisions concerning pedestrians, cyclists, users of two-wheeled motor vehicles, pedestrians at cycle crossings, and the separation of pedestrians and cyclists from high-speed car traffic or the existence of other alternative routes on lesser roads. (L.D. No. 35 of 2011, exhibit II(1)(d-bis) on Indicative Components of Road Safety Controls, added by L.D. No. 213, art. 11(1)(b).)
Additionally, studies on road safety must consider other components of road safety assessments at the network level. (L.D. No. 35 of 2011, exhibit III(11.1) on Indicative Components of Road Safety Assessments at the Network Level, substituted by L.D. No. 213, art. 13(1).)
Notices to the EU Commission
The Italian Ministry of Sustainable Infrastructure and Mobility is charged with sending to the European Commission the list of the motorways and main roads existing in the national territory. (L.D. No. 213, art. 1(5).) Also, on October 31, 2025, and every five years thereafter, that ministry must also provide a report on the safety classification of the entire network, including technological improvements and the protection of vulnerable road users. (L.D. No. 35 of 2011, art. 9-bis, added by L.D. No. 213, art. 8(1).)
An initial road safety assessment at the network level is to be carried out by the Italian transportation authorities in or before 2024 and at least every five years thereafter. (L.D. No. 35 of 2011, art. 5(3), substituted by L.D. No. 213, art. 3(1).) At any rate, the same authorities must carry out periodic road safety inspections with sufficient frequency to guarantee adequate levels of safety for the road infrastructure subject to L.D. No. 213. (L.D. No. 35 of 2011, art. 6, para. 1, substituted by L.D. No. 213, art. 4(1)(b).)
Protection of Vulnerable Road UsersL.D. No. 213 also contains provisions for the protection of vulnerable road users. (L.D. No. 35 of 2011, art. 6-ter(1), added by L.D. No. 213, art. 5(6).)
On January 7, 2022, the Turkish Constitutional Court’s “pilot judgment” in Keskin Kalem Yayıncılık and Others (B. No. 2018/14884) was published in Turkey’s Official Gazette. The General Assembly of the Court held that the government had violated the constitutional right to freedom of expression and the constitutional right to an effective remedy in consolidated cases concerning the blocking of access to online news web pages by lower courts.
The petitioners in Keskin Kalem are owners of online news websites and a journalist that published or authored news articles in national online newspapers or news portals that were blocked in the various court proceedings. The Constitutional Court consolidated nine cases, in which a total of 129 URL addresses had been blocked by decisions of judges of the peace in accordance with article 9 of Law No. 5651. In all nine cases, the judges had blocked access to the news article in question upon complaints by the individuals who were the subjects of the news articles and who argued that certain statements in the news articles unlawfully harmed their reputations and good names. The individuals in question were all politicians, public figures, or public servants (Keskin Kalem § 113.)
According to the article 9 procedure, natural or legal persons who claim that their “personal rights” (i.e., rights to reputation and good name) were violated by content published on the internet may give notice to the content or hosting provider that they want the content to be removed. The claimant may also, without first giving notice to the content or hosting provider, directly petition the judge of the peace to block access to the content in question. (Art. 9(1).) On receiving the request, the judge of the peace decides without a hearing whether to block access to the content. (Art. 9(3)–(5).) The blocking measure is of indefinite duration. The decision of the judge of the peace may be reviewed by another judge of the peace upon objection; however, the decision cannot be appealed to higher courts. The only remedy available is an individual application made before the Constitutional Court. The judgeships of the peace are courts whose primarily duty is to rule on procedural or security measures such as search warrants or pretrial detention, and they ordinarily do not conduct full adversarial trials.
The article 9 procedure has been severely criticized by the Council of Europe’s Venice Commission, most significantly on the grounds that (1) the procedure is not connected to any civil or criminal court process on the merits of the defamation claim underlying the blocking request, whereby the suitability of the measure could be better assessed; and (2) article 9 does not allow the judge of the peace to seek a less restrictive measure, such as requiring the publisher to publish the complainant’s response, that would be proportional to the potential harm sustained by the complainant.
Acknowledging these shortcomings of the article 9 procedure and with a view to remedying their negative effects, the Constitutional Court in its judgment in the 2017 Ali Kıdık case had laid down guidelines for the application of article 9. The court, emphasizing the ex parte nature of the procedure and the limited factual assessment made by the judge of the peace, had held that article 9 should be interpreted to allow blocking only in cases where the violation is so blatant that the court can determine the violation prima facie without the need of a hearing or additional evidence. Nevertheless, some commentators reported that even following the Ali Kıdık decision, criminal judges of the peace continued to systematically ignore, or fail to apply, the prima facie doctrine, although it was repeatedly upheld as the proper standard by the Constitutional Court.
The Constitutional Court in Keskin Kalem found that in the consolidated cases, none of the judges of the peace who granted the original blocking request had properly applied the prima facie doctrine. Likewise, none of the judges of the peace who reviewed the decisions of the original courts had engaged in a proper prima facie analysis, and had issued decisions that appeared to merely rubber-stamp the original decisions. Moreover, the court found that in the consolidated cases, the alleged injury to personal rights were not prima facie violations. The court reasoned that this state of affairs, besides constituting violations of the petitioners’ constitutional rights, indicated that a systematic problem existed in the website-blocking framework that was caused by the design of article 9 itself. The court emphasized several problems with Law No. 5651, explaining that the law (1) does not provide any guidelines to the judges of the peace for using their discretion in the ex parte proceedings and for limiting their blocking decisions to be proportional to the harm, (2) does not provide any guidelines or principles as to how the review should be conducted by the reviewing judge of the peace, and (3) does not provide for measures less restrictive than the blocking of access that would ensure an intervention proportional to the harm. (§§ 120–33.)
In Turkish constitutional adjudication, the Constitutional Court cannot invalidate laws on the basis that they are unconstitutional under the “individual application” procedure, which was used in this case. Therefore the court, in light of its finding that the violations were primarily caused by the law itself, decided to issue a “pilot judgment” and send a copy to the legislature. The pilot judgment procedure is provided in article 75 of the internal regulations of the Constitutional Court. The procedure is employed when the court determines that the violation of a constitutional right in a given case arises from a structural problem that has given rise to other applications and can be expected to give rise to more applications in the future. When the court decides to adjudicate an application under the pilot judgment procedure, it may adjourn all other cases that are before it that relate to the same structural problem. Once a pilot judgment is issued, administrative bodies must apply the ruling in relevant applications made to them, or for cases that reach the Constitutional Court, the court may consolidate the cases and decide them in line with the pilot judgment.
Accordingly, the court provided the following suggestions to the legislature (§ 137):
- The access-blocking procedure of article 9 of Law No. 5651 must be amended to make its application more foreseeable and clarify its legal nature (i.e., whether it is a preliminary measure or a final decision).
- The scope of article 9 must be limited to the stated purpose of article 1 of Law No. 5651—namely, combating crimes committed in the internet medium—and violations of a civil, noncriminal, nature might better be left outside of the scope of article 9.
- Article 9 should include criteria or a threshold indicating the level of minimum harm that triggers the applicability of its blocking provisions.
- If the article 9 blocking measure is maintained as a provisional measure, the ordinary procedure in the Code of Criminal Procedure should be applicable, and the continuation of the blocking should be decided in an adversarial process on the merits. If this is not possible, which is likely in many cases because the content or hosting provider is not reachable, there must be established safeguards that would preclude arbitrary decisions and ensure that the intervention to the freedom of expression is not disproportionate to the harm.
- At a minimum, establishing a procedure whereby an adversarial process is provided in cases where the content or hosting provider appears to object to the blocking should be considered.
On December 26, 2021, Legislative Decree No. 210 (L.D. No. 210) entered into effect in Italy, liberalizing the domestic electricity market and implementing EU Directive 2019/944 on common rules for the internal market for electricity.
General Organizational Principles of the Electricity Market
This sweeping legislation governing the Italian electricity market lists the principles under which this market is to be organized. (L.D. No. 210, art. 1(1).)
Contractual Rights of Final Customers
Under the new legislation, final customers may purchase electricity from one or more producers or suppliers of their choice, even if these are located in another European Union (EU) member state. (Art. 5(1).) Final customers must receive a summary, written in simple and concise language, of their contractual rights, in particular concerning prices and tariffs applied. (Art. 5(4) & (7).) L.D. No. 210 imposes stringent obligations for electricity suppliers to provide, free of charge, accurate, easily understandable, clear, concise, and easy-to-consult billing information to their final customers. (Art. 6(1) & (2).) Final customers also have the right to change their suppliers, without discrimination related to costs, charges, or times. (Art. 7(1).)
Contracts with Dynamic Prices
Final customers who have a smart electricity meter may enter into contracts for dynamic electricity prices with each supplier that has more than 200,000 final customers. (Art. 8(1).) The supply contract with dynamic price is based on the actual consumption data of the customer, as detected by the intelligent metering system. (Art. 8(2).) These systems must accurately record the actual time of electricity use, ensuring the consistency of measurement methods used to measure the electricity fed into the network and taken from the network. (Art. 9(1)(a).) Such methodology must comply with applicable EU legislation. (Art. 9(1)(b).)
The Italian Regulatory Authority for Energy, Networks and Environment (Autorità di Regolazione per Energia Reti e Ambiente, ARERA) is to monitor for 10 years contracts with dynamic electricity prices, detecting any risks that might exist affecting final customer bills and price volatility. (Art. 8(4).)
Final customers who do not yet have smart meters may still use individual conventional meters that can accurately measure their actual consumption, either directly or via an online interface or other suitable interface. (Art. 9(6).)
Vulnerable Electricity Customers
Special guarantees are established for vulnerable and poor electricity customers, in particular those with serious health conditions that require the use of medical-therapeutic equipment powered by electricity necessary for their life support, as well as those in smaller, non-interconnected localities or in emergency housing structures affected by natural disasters, and those over 75 years of age. (Art. 11(1)(b), (d), (e), (f).)
To aid these customers, the decree contemplates the creation of the National Observatory of Energy Poverty with the purpose or fighting energy poverty at several government levels. (Art. 11(5), (6)(a).)
Contracts for Aggregation and Management of Electricity Demand
Customers may purchase and sell all services connected to the electricity market other than supply and enter into aggregation contracts, regardless of their existing energy supply contracts and by contracting with electrical companies of their choice. (Art. 12(1).)
Further Liberalization of the Domestic Electricity Market
In accordance with L.D. No. 210, a gradual transition is to occur from the current wholesale electricity market, in which a single national price is applied to final customers, to the application of zonal prices defined on the basis of market needs, favoring the transparency of the markets. (Art. 13(1).)
Additionally, active customers have the right to sell self-produced electricity on the market by entering into agreements for the purchase of electricity. (Art. 14(2)(b).) The community can also participate in the areas constituted by the generation, distribution, supply, consumption, aggregation, or storage of electricity or the provision of energy efficiency services, electric vehicle recharging services, or other energy services. (Art. 14(6)(c).)
The sharing of the electricity eventually produced by energy communities can take place through the existing distribution network and also through lease or purchase contracts of portions of the same network or newly built networks. (Art. 14(10).)
Tariffs established in accordance with the above or the methodologies for their calculation must be previously approved by ARERA. (Art. 15(2).)Closed distribution systems can also be created for the distribution of electricity to industrial, commercial, or shared service consumption units located within a geographic area. (Art. 17(1).)
On December 24, 2021, France adopted a new law to promote gender equality in the workplace and in the economy at large. This law, sometimes referred to as the Loi Rixain (Rixain Law), after the bill’s main sponsor in the French parliament, Marie-Pierre Rixain, imposes quotas for the representation of women in the leadership positions of large corporations, defined as corporations of 1,000 or more employees.
By March 1, 2027, at least 30% of managerial positions in these companies, as well as 30% of the seats on these corporations’ governing bodies, will have to be filled by women. By March 1, 2030, these quotas will be raised to 40% for both managerial positions and governing bodies. Corporations will have a grace period of no more than two years following each of these deadlines to comply, beyond which they will be subject to financial penalties that could go as high as 1% of the company’s total payroll. As of 2020, only one-fourth of French companies had gender quasi-parity among their 10 highest paid positions, and 43% of corporations of over 1,000 employees had fewer than two women among their 10 highest paid positions.
This law builds upon a 2011 law that aimed to promote gender quasi-parity, defined as having no less than 40% of either gender on the board of directors of large companies listed on the stock market. This law was successful in its immediate goal, as women now make up over 46% of the boards of directors of large French corporations listed on the stock market, ahead of the Netherlands (about 39% as of March 2021), Norway and Sweden (about 37%), and well ahead of the United States (about 30%). However, the 2011 law was a disappointment in the sense that the hoped-for trickle-down effect by which more women on corporate boards would lead to more women in management positions, and especially upper-management positions, appears not to have occurred. Additionally, women remain underrepresented on the governing bodies of smaller companies and of companies not listed on the stock market. This new law aims to rectify these imbalances, as it imposes quotas for management positions and positions on the boards of unlisted large corporations. The new law will also require companies to publish statistics on gender parity.
In addition to the above, the new law aims to counteract gender bias in professional training and higher education by requiring that selection juries for all higher education courses be composed of at least 30% women. Public research institutes, as well as schools offering courses that prepare students for grandes écoles — elite French institutes of higher education — will have to publish an index of gender equality of opportunity for all of their courses. The government hopes that this will help correct imbalances by which, for example, women comprise only 26% of graduates of engineering schools versus 70% of graduates with literature degrees.Finally, the new law aims to encourage women in entrepreneurship by helping women access financing. The public investment bank Bpifrance will be required to take gender parity into account in providing financial support to new enterprises, and the selection committees of projects will have to be made up of 30% women by March 1, 2022, and 40% women by March 1, 2026.
On December 25, 2021, Decree Law No. 221 (D.L. No. 221) entered into effect in Italy, extending the declaration of national emergency due to the COVID-19 pandemic and implementing other urgent measures to safeguard human health.
Declaration of National Emergency due to COVID-19
Considering the health risks associated with the protracted spread of the COVID-19 virus, D.L. No. 221 extends the state of emergency until March 31, 2022. Accordingly, the head of the Civil Protection Department and the extraordinary commissioner for the fight against COVID-19 are further empowered to adopt measures for the routine continuation of activities necessary to counter and contain the epidemiological emergency. (D.L. No. 221, art. 1(1)–(2).)
In accordance with previous legislation enacted in September 2021 establishing stringent Green COVID-19 certification obligations, D.L. No. 221 provides that effective from February 1, 2022, the duration of green COVID-19 certifications is reduced from nine to six months. (Decree-Law No. 52 of April 22, 2021, art. 9, para. 3, substituted by D.L. No. 221, art. 3(1).)
The functioning of the COVID-19 alert system and national telephone answering service for health surveillance is also extended to December 31, 2022. (D.L. No. 221, art. 15(1).)
Mandatory Use of Masks Extended
The decree also makes it obligatory throughout the country to wear masks, even in outdoor places, for the entire month of January. (Art. 4(1).)
Also mandatory for the duration of the state of emergency is the use of FFP2 respiratory protection devices for persons attending shows open to the public, whether indoors or outdoors, including sporting events. (Art. 16(2).)
Consumption of Food and Drinks at Public Events
The consumption of food and drinks at either indoor or outdoor shows open to the public, including sporting events, besides those provided by the catering services at the same establishment, is prohibited during the state of emergency. (Art. 4(2).)
During the state of emergency, only persons possessing COVID-19 green certifications are permitted to consume food and drinks indoors at the counter at catering services. (Art. 5(1).)
Prohibition of Mass Events
For the whole month of January 2022, mass events, including parties, however named, and like events and concerts that involve gatherings in open spaces, as well as activities taking place in dance halls, discos, and similar places are prohibited. (Art. 6(1)–(2).)
Green Certification for Visiting Hospices
Until the end of the epidemiological emergency, only persons holding a green COVID-19 certification, including the booster dose, are permitted access to residential, social welfare, and hospice facilities. Such authorization is also issued to individuals who possess a COVID-19 green certification, after completion of the primary vaccination cycle, or after the issuance of a medical certificate attesting recovery from COVID-19, or a certification attesting the negative result of the rapid or molecular antigen test, performed within 48 hours before accessing the facilities. (Art. 7(1)–(2).)
The decree also provides that rapid antigen tests are to be performed free of charge. (Art. 9(1).)
Sanitary Control of Access to the National Territory
The legislation appropriates additional funds to allow border maritime, air, and other land sanitary units of the Health Ministry to carry out at ports of entry antigenic or molecular tests of travelers entering the national territory. Travelers who test positive are directed to “COVID Hotels” for the implementation of fiduciary isolation for a period of 10 days, at their own expense. (Art. 11(1)–(2).)
Administration of Vaccines at Pharmacies
For the rest of 2022, the legislation appropriates additional funds in the amount of 4.8 million euros (about US$5.4million) to allow for the free vaccination of citizens. (Art. 12(1).)
Further Measures to Prevent Contagion by COVID-19 at Schools
The legislation appropriates an additional 9 million euros (about US$10.1 million) to identify and trace positive cases at schools during the 2021-2022 school year, which includes the administration of tests and related analyses at military laboratories. Additional compensation to military medical, paramedical, and support personnel, including staff from operational rooms of the Armed Forces, is to be funded with additional appropriations. (Art. 13(1)–(2).)
Protection of Educational Entities Affected by Work Shortages During the PandemicAdditionally, the new legislation allocates fresh funds for replacing employees who, for reasons related to the pandemic, are unable to perform their teaching, educational, administrative, technical, and auxiliary duties at educational institutions. (Art. 17(1).)
A new directive issued by Supreme Court President Esther Hayut on January 1, 2022, establishes a pilot program for live broadcasts of the reading of selected judgments during 2022. Under the pilot program, 18 readings of judgments and decisions by magistrate and district courts (lower courts), three from each of the six judicial districts, would be broadcast, subject to the consent of the relevant parties.
The selection of cases for live broadcasts will be made by presidents of the lower courts, in consultation with the relevant adjudicating bench and in cooperation with the spokesperson of the judiciary. According to the directive,
[t]he main criterion for reading a judgment in a live broadcast is the expectation of the existence of a public interest in the procedure. In addition, other considerations will be examined, including: the nature and essence of the procedure; [and] the implications of live broadcasting on the rights of litigants and other parties, such as the right to privacy and the right to a good name. (Directive § 6.)
The live reading of lower court decisions would be transmitted via the Judicial Authority’s website, which has been running a limited pilot project for the live broadcast of selected Supreme Court hearings since 2020.
Hayut proposed the pilot on the basis of recommendations issued to her in July 2021 by a team appointed by the Director of the Court’s Office. The recommendations concerned reexamining aspects of public hearings in the light of technological developments and restrictions imposed by the coronavirus pandemic. The team examined, among other things, the issue of using technological means to replace physical presence, and concluded that “the principle of publicity of hearings in the broadest sense implies to us that there is a need for broader accessibility of the public to legal proceedings.”
The principle of the “publicity of proceedings” is recognized under section 3 of the Basic Law: the Judiciary, which provides that “[a] court shall sit in public unless otherwise provided by Law or unless the court otherwise directs under Law.”
According to Hayut, the live broadcast pilots, along with ongoing projects for digitalizing and publishing abstracts of judgments in accessible language, reflect the commitment of the Israeli judiciary to providing an efficient, accessible, and transparent service to the public.
On January 7, 2022, Bill C-4, a federal bill that amends Canada’s Criminal Code by creating new criminal offenses related to conversion therapy, came into effect. The new offenses include knowingly causing another person to undergo conversion therapy, promoting or advertising conversion therapy, and receiving financial or material benefit from conversion therapy. Minister of Justice and Attorney General of Canada David Lametti and Minister for Women and Gender Equality and Youth Marci Ien introduced the bill on November 29, 2021. On December 1, members of Parliament (MPs) in the House of Commons unanimously agreed to expeditiously adopt a motion to pass the bill. Soon after, the bill was also fast-tracked in the Senate, and on December 7 it was passed without amendment. The bill received royal assent on December 8, 2021. The bill itself stipulated that the law would come into force 30 days after it received royal assent.
Contents of the Bill
The bill defines “conversion therapy” as follows:
[C]onversion therapy means a practice, treatment or service designed to
(a) change a person’s sexual orientation to heterosexual;
(b) change a person’s gender identity to cisgender;
(c) change a person’s gender expression so that it conforms to the sex assigned to the person at birth;
(d) repress or reduce non-heterosexual attraction or sexual behaviour;
(e) repress a person’s non-cisgender gender identity; or
(f) repress or reduce a person’s gender expression that does not conform to the sex assigned to the person at birth.
For greater certainty, this definition does not include a practice, treatment or service that relates to the exploration or development of an integrated personal identity — such as a practice, treatment or service that relates to a person’s gender transition — and that is not based on an assumption that a particular sexual orientation, gender identity or gender expression is to be preferred over another.
The bill amends sections 320.102–104 of the Criminal Code to establish the following as indictable offenses:
- Knowingly causing another person to undergo conversion therapy or providing such therapy, which is punishable by up to five years’ imprisonment.
- Knowingly promoting or advertising conversion therapy, which is punishable by up to two years’ imprisonment.
- Receiving a financial or other material benefit, knowing that it is obtained or derived directly or indirectly from the provision of conversion therapy, which is punishable by up to two years’ imprisonment.
Each of these offenses can also be punished on summary conviction.
Bill C-4 amends subsection 164(8) of the Criminal Code to define “advertisement of conversion therapy” as “any material — including a photographic, film, video, audio or other recording, made by any means, a visual representation or any written material — that is used to promote or advertise conversion therapy contrary to section 320.103.” Moreover, the bill states that “[i]t also amends the Criminal Code to authorize courts to order that advertisements for conversion therapy be disposed of or deleted,” including from computer systems or the internet. (Bill C-4 summary; sec. 2(2).)
In addition, the bill amends the existing offense under section 273.3(1)(c) of the Criminal Code, which prohibits the removal of children from Canada for “specified purposes,” to now include subjecting them to conversion therapy abroad. This is also a hybrid offense that is punishable by up to five years’ imprisonment on indictment.
Previous Attempts to Ban Conversion Therapy in Canada
Previous attempts to pass a bill to ban conversion therapy in Canada were unsuccessful. Bill C-6, which was considered during the second session of the 43rd Parliament, “died on the order paper when Prime Minister Justin Trudeau prorogued Parliament before the last federal election.” An even earlier Bill C-8 that was under consideration in early 2020 was “derailed” when the “government turned its focus almost exclusively to its emergency response to the COVID-19 pandemic.”
The previous Bill C-6 was eventually adopted in the House, despite opposition from dozens of Conservative MPs, and it faced opposition from Conservative senators in the Senate as well. One news report indicates that “[t]hose opposed to the legislation generally criticized it for offering too broad a definition of conversion therapy.” Another news report notes that “[a]t the time, Conservative Senators expressed concerns about the bill and said it merited a fulsome study in the fall.”
Passage of the Current BillThis time around, the bill had cross-party support, and it was Conservative MPs and senators who proposed fast-tracking the bill through unanimous consent motions in both chambers. One news report stated that this shift was “likely in an attempt to make [the conversion therapy bill] no longer a wedge issue used by the Liberals.” Conservative Sen. Leo Housakos, who proposed the motion to expedite the bill in the Senate, reportedly declared that “C-4 is a bill that has been turned into a controversial political football, unfortunately. We saw the House of Commons do the right thing a number of days ago and pass this piece of legislation unanimously.” Advocacy groups also praised the “unanimous support” for the bill in Parliament, with No Conversion Canada founder Nicholas Schiavo claiming that the passage of the bill “sends a clear message to LGBTQ2 Canadians: you are valid and deserving of a life free from harm.”
On January 1, 2022, a ban on single-use plastic packaging for the sale of approximately 30 types of fruits and vegetables took effect in France. The ban serves to implement part of a February 2020 law aimed at fighting against waste and promoting a circular economy.
The government issued a decree on October 8, 2021, providing more detail on the implementation of the ban. Specifically, the decree established a phased implementation of the ban on single-use plastic packaging, to begin on January 1, 2022, for about 30 types of fruits and vegetables, including leeks, bell peppers, cucumbers, cabbage, potatoes, carrots, round tomatoes, apples, pears, oranges, clementines, pineapples, mangos, passion fruit, plums, and kiwis. However, the decree provides that produce vendors will be able to sell this produce in plastic packaging for up to six months after the ban takes effect so that any remaining stocks of plastic packaging may be used up. Additionally, the ban on plastic packaging will be delayed for some types of produce for which there is a particularly high risk of damage when it is sold as loose items. For example, the ban will come into force on June 30, 2023, for certain types of tomatoes (including cherry tomatoes), Brussels sprouts, green beans, grapes, nectarines, apricots, and a few others. Endives, asparagus, broccoli, mushrooms, lettuce, aromatic herbs, spinach, cherries, cranberries, gooseberries, and a few others may be sold in single-use plastic packaging until December 31, 2024, while berries (other than cranberries and gooseberries), fruits that are perfectly ripe, and germinated grains can be sold in such packaging until June 30, 2026.
Other plastic bans under the law against waste and for a circular economy came into force on January 1, 2022, as well: newspapers and advertising may no longer be mailed in plastic wrapping, tea sachets will no longer be made out of nonbiodegradable plastic, restaurants are no longer allowed to offer free plastic toys as part of children’s menus, labels affixed directly onto fruits and vegetables must now be made of compostable material, and locales that are open to the public must now have at least one accessible drinking water fountain to help cut back on the use of plastic water bottles. These measures are meant to reduce plastic usage and pollution, as an estimated 45.5% of plastic use in France goes to making packaging, while an estimated 37% of fruits and vegetables were sold in single-use plastic packaging before January 1, 2022.
On December 16, 2021, Law 17/2021 of December 15, 2021, which amends provisions of Spain’s Civil Code, Law on Mortgage, and Law on Civil Procedure regarding the legal regime of animals, was published in Spain’s official gazette and reportedly was to enter into force on January 5, 2022.
The new law amends the Civil Code to provide that animals may no longer be considered things but sentient beings and family members, and that animal owners are now required to provide proper care to ensure their animals’ well-being in accordance with the characteristics of each species.
The new provisions also protect an animal from being seized, abandoned, mistreated, or removed from one of its owners in case of a separation or divorce. Moreover, the law provides that a judge may rule against granting joint child custody to a partner if there is well-founded evidence that the partner has committed domestic or gender violence, including mistreating or threatening to harm animals as a means of vicariously controling or victimizing the other partner or their children.
Law 17/2021 provides for shared custody of animals in cases of separation in a marriage or partnership. Accordingly, a court may modify the conditions of an animal’s care and how the costs of the pet’s expenses will be shared between the two parties, and even decide on its custody in case of disagreement.
Pets can also now be considered in wills, but if they are not, they will be handed over to the heir who claims them. If more than one heir claims a pet and there is no unanimous agreement on its fate, the judicial authority will decide its fate, taking into account the welfare of the animal. If none of the heirs are willing to take care of them, the administration can hand them over to a third party for their care and protection.
Under the new provisions, whoever finds a lost animal must return it to its owner or whoever is responsible for its care, unless there are well-founded indications of abuse or neglect, when it will be brought to the attention of the competent authorities. A person who returns a lost animal to the owner or person responsible for its care can claim expenses for its treatment and care.
Under the amendment to the Law on Mortgage, animals from livestock, industrial, or recreational farms will not be included in mortgages and may not be seized, while the amendment to the Law on Civil Procedure prevents companion animals from being seized to cover unpaid debts.
According to Professor Nuria Máximo, director of the Professorship of Animals and Society at the Rey Juan Carlos University, these changes reflect how society is changing its vision of the way animals should be treated. Animal protection associations, such as the Observatory for Animal Justice and Defense, were instrumental in collecting signatures in support of the bill for Law 17/2021.Spain’s move to enact similar legislation to “de-objectivize” and increase protection for animals follows the trend of other countries or territories in Europe (Austria in 1986, Germany in 1990, Switzerland in 2003, Catalonia in 2006, Belgium in 2009, France in 2015, and Portugal in 2017), as well as countries outside the continent, such as Canada and New Zealand.
On December 2, 2021, Legislative Decree No. 201 (L.D. No. 201) entered into effect in Italy, implementing EU Directive 2019/2034 and other related European Union legislation on the prudential supervision of investment firms.
Single Surveillance Mechanism
L.D. No. 201 defines the EU’s “Single Surveillance Mechanism” as the financial surveillance system made up of the European Central Bank and the national authorities of the participating member states. (L.D. No. 58 of February 24, 1998, art. 1, para. 1(d-ter.1), added by L.D. No. 201, art. (1)(a)(1).) The “Single Resolution Mechanism” is defined as the resolution system created in accordance with EU Regulation 806/2014, which is composed of the Single Resolution Committee and the national authorities of the participating member states. (L.D. No. 58, art. 1, para. 1(d-ter.2), added by L.D. No. 201, art. (1)(a)(1).)
In accordance with the new legislation, for purposes of EU Directive 2019/2034 and related EU legislation, the Italian national financial authorities are the Banca d’Italia and the Consob (National Commission for Stock Companies). (L.D. No. 58, art. 7-undecies, added by L.D. No. 201, art. (1)(e).)
Broadened Powers for Italian Financial Authorities
The Banca d’Italia received reinforced powers to supervise the performance of the financial markets to identify any factors that may compromise their liquidity and the stability of the EU financial system, in particular, concerning any financial emergency situation. (L.D. No. 58, art. 4, para. 9-bis, added by L.D. No. 201, art. (1)(b)(4).) Both the Consob and the Banca d’Italia are empowered to request, within their respective competences, the periodic transmission of data and information from investment holdings and mixed financial participation companies headquartered in Italy. (L.D. No. 58, art. 12-bis, para. 1, added by L.D. No. 201, art. (1)(g).) Both authorities may also, upon request from the financial authorities of other EU member states, carry out inspections of such companies. (L.D. No. 58, art. 12-bis, para. 3, added by L.D. No. 201, art. (1)(g).)
Authorization of New Banking Activities
New banking activities in EU territory are tightly regulated, with the new Italian legislation providing that new investment activities through securities firms (società di intermediazione mobiliare, SIM) require compliance with stringent criteria, and must, when such activities are headquartered in Italy, obtain final authorization from the EU Central Bank when the Banca d’Italia submits the requests for such authorization. (L.D. No. 58, art. 20-bis, para. 1, added by L.D. No. 201, art. (1)(j).)
Monetary PenaltiesThe new legislation establishes monetary administrative penalties for the violation of the newly implemented EU regulations concerning the prudential supervision of investment firms. (L.D. No. 58, art. 194-ter.1, para. 1, added by L.D. No. 201, art. (1)(w).)
On January 15, 2022, an amendment to the COVID-19 Protective Measures Exceptions Ordinance (COVID-19-Schutzmaßnahmen-Ausnahmenverordnung, SchAusnahmV) and the Ordinance on Coronavirus Entry Regulations (Coronavirus-Einreiseverordnung, CoronaEinreiseV) entered into force in Germany. The amendment changes the definitions of who is considered vaccinated or recovered by referring to the latest criteria developed by the Paul-Ehrlich-Institute (PEI) and the Robert Koch Institute (RKI) as applicable at the time. In addition, on January 7, 2022, the heads of government of the German states and the German federal chancellor decided to implement further changes to the isolation and quarantine rules.
Authorization of the Federal Government
The German Infectious Diseases Protection Act (Infektionsschutzgesetz, IfSG) authorizes the federal government to adopt exceptions to the general COVID-19 measures for persons who are vaccinated, have recovered from COVID-19, or have tested negative. (IfSG § 28c.) These exceptions are implemented in the COVID-19 Protective Measures Exceptions Ordinance and the Ordinance on Coronavirus Entry Regulations. In particular, vaccinated and recovered persons are exempt from the quarantine requirements under state law. (SchAusnahmV § 6.) The COVID-19 Protective Measures Exceptions Ordinance authorizes the German states to add additional exceptions to COVID-19 measures for vaccinated, recovered, or tested persons as long as the aforementioned ordinance does not provide otherwise. (§ 7.)
Content of the Amendment
The amendment requires vaccination and recovery certificates to comply with the criteria established by the PEI and the RKI as currently applicable and available on their websites. Vaccination certificates must comply with the criteria with regard to:
- Vaccine used.
- Number of required doses for full vaccination.
- Whether booster shots are needed for full vaccination.
- Waiting period for full vaccination after last required dose.
- Maximum period in between shots and booster shots.
Recovery certificates must comply with the criteria with regard to:
- Type of test to prove previous infection.
- Time required after the test to prove an infection (currently 28 days).
- Maximum time allowed since a test to prove an infection (currently 90 days).
Despite the abovementioned exemptions from isolation and quarantine requirements for vaccinated or recovered people provided under state law, the amendment authorizes the German states to order certain vaccinated or recovered persons to isolate or quarantine if the RKI has issued a recommendation in that regard. (Amendment art. 1, no. 2.)
Content of the Decision
The federal government and the German states agreed on the following amended isolation and quarantine rules:
- Persons who have had close contact with an infected person are exempt from quarantine if they are fully vaccinated and have received a booster shot or fall into a similar category. Similar categories are, for example, persons who are newly vaccinated or newly recovered.
- Isolation and quarantine generally end after 10 days or after seven days with a negative PCR or rapid test result.
- People working in hospitals, care institutions, or similar establishments who get infected may test out of isolation early, after seven days, only if they have a negative PCR test and have been symptom free for 48 hours.
- Students and children in daycare who have had close contact with an infected person may end their quarantine early, after five days, with a negative PCR or rapid test, because they are frequently tested at their respective facilities.
COVID-19 Vaccination and Infection Numbers in GermanyAs of January 14, 2022, 74.9% of the German population had been vaccinated at least once, 72.5% had been fully vaccinated, and 45.9% had received a booster shot. There had been a total of 92,223 active confirmed COVID-19 cases, 115,337 individuals had died, and 6,914,700 people had recovered.
Switzerland: Government Shortens Quarantine and Isolation Period, Proposes Extending Validity of COVID-19 Measures to March
On January 12, 2022, the Swiss Federal Council (government) decided to shorten from 10 days to five days the COVID-19 isolation and quarantine period for persons who have been infected or have had close contact with an infected person. The amendment of the COVID-19 Special Situation Ordinance entered into force the next day, January 13. People who are vaccinated, have recovered from COVID-19, or carry out an activity that is of high importance to society and for which there is an acute shortage of staff are exempt from the quarantine requirement. (COVID-19 Special Situation Ordinance art. 7, para. 2.) According to the Federal Council press release, the reason for the shorter isolation and quarantine period is that the interval between infection and transmission of the virus is shorter for the Omicron variant.
Furthermore, the Federal Council proposed extending the validity of measures to stop the spread of COVID-19 adopted on December 17, 2021, to March 31, 2022. The measures were set to expire on January 24, 2022. Among other rules, the measures adopted in December
- make the 2G (geimpft, genesen) rule mandatory for certain indoor settings, meaning they may be entered only by people who can prove that they are either vaccinated or have recovered from COVID-19;
- restrict private indoor gatherings to 10 people if at least one person over the age of 16 is unvaccinated or has not recovered, or to a maximum of 30 people otherwise;
- restrict private outdoor gatherings to a maximum of 50 people; and
- require people to work from home.
A final decision on extending the measures will be made on January 17, 2022.
Lastly, the Federal Council proposed shortening the validity of COVID-19 vaccination and recovery certificates from 365 days to 270 days. The Swiss cantons (states) will be consulted on this proposal. It is slated to enter into force on February 1, 2022.
COVID-19 Vaccination and Infection Numbers in Switzerland and LiechtensteinAs of January 13, 2022, 69.36% of the eligible population had been vaccinated at least once, 67.72% had been fully vaccinated, and 32.28% had received a booster shot. As of January 12, 2022, there were 312,885 active COVID-19 cases and 12,104 individuals had died.
On December 21, 2021, the High National Elections Commission of Libya ordered the dissolution of electoral committees nationwide and confirmed that the first presidential election in the country’s history, which was due to be held on December 24, 2021, would be postponed. The factors leading to the postponement were security concerns and disputes over the eligibility of the main candidates, the fundamental rules governing the election, “controversial” election laws issued last fall by parliament speaker and presidential candidate Aguila Saleh, and the eventual powers of the parliament and the next president of the country.
The commission, after communicating with the parliament, has proposed a new date of January 24, 2022, but some, such as Libyan journalist Rami R. Musa, have expressed doubts that the election would be held this year as well.
Background to the Election Conflict
Following the overthrow and killing of Libya’s last president, Muammar Gaddafi, in an uprising by rebel forces backed by UN Security Council-approved NATO air strikes in October 2011, Libya descended into civil strife, which led to a power vacuum that has continued to the present.
Several days before the current election was to be held, rival armed groups had begun mobilizing in Tripoli, with no official list of candidates having been presented to the public or formal campaigning conducted. Reportedly, some Libyans were fearful that the disputes over the current election process could trigger a crisis similar to the one following the June 2014 parliamentary election when the country erupted into civil war between western and eastern factions that established parallel administrations in Tripoli and Benghazi.
Controversial Main Candidates
Gaddafi’s son, Saif al-Islam Gaddafi, who was sentenced to death by a court in Tripoli in absentia in 2015 for war crimes committed during the rebel uprising and who is wanted by the International Criminal Court for alleged war crimes, registered as a candidate for president on November 14, 2021. However, the High National Elections Commission rejected his candidacy, claiming that he had violated article 10 of Libyan Resolution No. 73 of 2021, the Presidential Elections Law, which stipulates that anyone who has been “convicted by a final judgment of a crime or felony involving moral turpitude or dishonesty” is ineligible to be a candidate.
In addition, General Khalifa Haftar, a warlord from the eastern part of the country, announced his candidacy on November 16, 2021. However, it remains unclear whether he, like Saif al-Islam Gaddafi, will be allowed to run because of allegations he has committed human rights abuses. In November 2021, a court in the western Libyan city of Misrata sentenced him to death in absentia for bombing a military college in 2019.
Laws Governing the Election
Resolution No. 73 of 2021
The High National Elections Commission issued Resolution No. 73 of 2021 on the Adoption of the List of Candidates for the Election of the President of the State on November 7, 2021. The resolution consists of 18 provisions that regulate the procedures and mechanisms for candidacy in the presidential election.
Among the requirements that presidential candidates must meet are that they must be at least 35 years old, they must not have a foreign nationality, and their spouses must not be foreigners. (Resolution No. 73 of 2021, art. 4.)
The resolution also stipulates that candidates must be Libyan Muslims whose parents are Libyan Muslims. (Art. 4(1).) Furthermore, candidates must submit an affidavit that no final court judgment, decision of dismissal from employment, or employment-related disciplinary action has been issued against them. (Art. 4(6).)
Additionally, candidates must obtain a recommendation from 5,000 voters registered in the National Elections Commission’s database. (Art. 4(10).) Finally, candidates who are members of the Libyan parliament must submit evidence that they had stopped exercising their position permanently three months before December 24, 2021. (Art. 4(12).)
The resolution also provides that the electoral system is to be a two-round system. Voters first cast a vote for a single candidate. The election continues to a second round if no candidate receives a simple majority (50% plus 1) of votes in the first round. (Art. 3.)
Resolution No. 82 of 2021
The High National Elections Commission issued Resolution No. 82 of 2021 on Electoral Campaigns on November 29, 2021. The resolution states that electoral campaigning is a guaranteed right for all candidates. All candidates “have the right to introduce their political programs to the public.” (Resolution No. 82 of 2021, art. 3.)
According to the resolution, all candidates engaging in electoral campaigning must:
- Adhere to all decisions and instructions issued by the High National Elections Commission.
- Refrain from using terms during the campaign that negatively affect national unity.
- Follow the ethical principles of Shari‘a (Islamic law).
- Preserve the public order. (Art. 8.)
In accordance with Resolution No. 82 of 2021, the electoral campaign period ends and all campaign activities must cease 24 hours before the scheduled time of the opening of polling stations. (Art. 24.)
On December 22, 2021, the Supreme Court of Finland found in two criminal appeal court cases that the participation of the judges via videolink constituted a procedural error, and remanded one of the cases.
Criminal Procedure in Finland
The Act on Criminal Procedure provides that parties may participate in proceedings electronically if the defendant agrees and the court finds it appropriate. (8 kap. 13 § Lag om rättegång i brottmål (FFS 1997/689) (BRL).) In addition, the law provides that party representatives such as the defense attorney or a plaintiff’s attorney may participate via videolink under the same circumstances. (8 kap. 13 § 2 st BRL.) The law does not explicitly mention judges or prosecutors. The Trial Procedure Code provides that in appellate courts the presence of three judges constitutes a quorum. (2 kap. 8 § 1 st Rättegångsbalken (FFS 1734/4) (RB).) Additionally, in certain cases, proceedings may continue despite the absence of one judge following the main hearing. (2 kap. 12 RB.)
The Two Cases Before the Supreme Court
In the Turku Appeals Court case, all three appellate court judges had been physically present for the initial hearing and issued a partial (interlocutory) judgment before one judge had to quarantine due to COVID-19 exposure. Following this judge’s exposure to COVID, the judge participated via videolink, and measures were taken to allow the parties to present their cases again. The Supreme Court found that the judge participating virtually should not be considered as having been absent from the proceedings but as having participated incorrectly. Nevertheless, the judge’s participation via videolink during the subsequent proceedings had not hindered the defendant from defending his case to the extent that a rehearing by the appeals court would be required. The case was therefore not remanded.
In the Vaasa Appeals Court case, the use of the electronic videolink was the result of a convenience request from the prosecutor who was retiring, and unrelated to the ongoing COVID-19 pandemic. The prosecutor, the parties, and one judge had participated from a district court building while the two other judges had been present in person at the Vaasa Appeals Court. The Supreme Court found that the defendant had not provided clear consent to the judge participating via videolink and that it was not justifiable to hold the hearing via videolink. The Supreme Court ruled that the case must therefore be reheard by the appellate court.Following the two decisions by the Supreme Court, it became established that under Finnish law that judges cannot participate via videolink absent a legislative change because the law does not allow for such participation. Specifically, the Trial Procedure Code does not regulate how and when judges can participate electronically, and the Supreme Court found that, absent a clear mandate to participate electronically during the main proceedings, judges cannot participate via videolink.
On December 30, 2021, the legislature of the Slovak Republic adopted amendments to Act 395/2019 Coll. on Identity Cards, which had been proposed by the Slovak Ministry of Interior and submitted to the parliament in the summer of 2021.
As stated in the explanatory memorandum, the bill was presented in the context of the adoption of Regulation (EU) 2019/1157 of the European Parliament and of the Council of 20 June 2019 on strengthening the security of identity cards of Union citizens and of residents issued to Union citizens and their family members exercising their right to free movement. This regulation requires that identity cards include a secure storage medium with a facial image and two fingerprints in interoperable digital formats.
Accordingly, the new act introduces the inclusion of fingerprints and facial features on Slovak ID cards. The features would be recorded in the form of biometric data. The data would be stored and encoded in the contactless electronic chip with a dual interface. A card access number, allowing access to data in the chip, would be displayed on the front of the ID card.
To meet the requirements of the European Union General Data Protection Regulation (GDPR), which does not allow storing biometric data, fingerprints would be deleted from the Ministry of Interior database once the document was issued to the holder. Marcela Macová, a Slovak expert in the field of data protection, explained that the GDPR covers data gained from processing physical, physiological, or behavioral characteristics of a natural person, such as facial images or dactyloscopy data. This kind of data also serves to confirm the identity of a natural person.
Because the GDPR does not allow creating or maintaining databases for storing biometric data at the national or the European Union level, the amended act provides for collecting and storing personal information in the storage medium only to verify the document’s authenticity and the holder’s identity. Several exceptions prescribed in article 6 of the GDPR allow the processing of biometric data to comply with the law. For instance, these exceptions cover the authorized persons who bear the responsibility of issuing the ID card.
The new act sets the obligation to record biometric information for all persons above the age of 12. Also, the act changes the administrative rule on applying for the ID card. Because applicants are obligated to undergo fingerprinting when applying, they can no longer apply for the card electronically.
Additionally, the act amends the Administrative Fees Act. Under previous legislation, ID cards were mandatory for all citizens above the age of 15 with residence in Slovakia , whereas for other citizens, they were only optional. The new act creates an exemption for mandatory ID cardholders from paying specific fees.
Previously issued ID cards will remain valid until their expiration date, and new ID cards will gradually be issued throughout 2022.Prepared by Adela Balima, Law Library intern, under the supervision of Peter Roudik, Assistant Law Librarian of Congress
On January 2, 2022, new sentencing rules in the Swedish Criminal Code (Brottsbalken [BrB] (SFS 1962:700)) entered into force, eliminating certain exceptions for criminal offenders aged 18 to 20. Previously, persons younger than 21 years old were entitled to an ungdomsrabatt (literally, “youth rebate”) that applied during sentencing for all crimes. (29 kap 7 § 1 st. BrB.) Under the new rules, the youth rebate no longer applies to crimes adjudicated after January 2, 2022, that carry a minimum sentence of more than one year of imprisonment. The rules also cover attempting, preparing, or conspiring to commit such crimes, or when the individual crime carries a sentencing value of one year or more. A person’s relative youth may still be considered during sentencing for less serious crimes. (29 kap. 7 § 3 st BrB.)
According to the government bill, the purpose of the change is to increase the punishment for more serious crimes and prevent the courts from issuing sentences perceived as lenient and that fail to recognize the severity of the crime. (Regeringens proposition [Government Bill] 2021/22:17 Slopad straffrabatt för unga myndiga vid allvarlig brottslighet at 1.) The amendment also brings Swedish law into closer alignment with the laws of its neighboring Nordic countries (Denmark, Finland, Iceland, and Norway), which do not have special sentencing guidelines for persons aged 18 to 20. (Regeringens proposition at 20.) Moreover, certain types of “youth sentences,” such as “youth surveillance” (ungdomsövervakning) that are aimed particularly at younger offenders will now be limited to persons who have not attained the age of 18 at the time of the crime. (32 kap. 1, 2, and 3a §§.)
In preparing the legislation, the government noted that criminal offenders aged 15 to 20 are overrepresented in Sweden, particularly younger men. During 2020, persons aged 18 to 20 were convicted of 20 cases of murder, five counts of manslaughter, 79 instances of aggravated assault, seven cases of arson, and two cases of aggravated arson. (Regeringens proposition at 21.) The government found that for these most serious crimes, sentencing reductions for adults of up to half of the original sentence “risk undermining the penal system’s credibility and legitimacy.” (Regeringens proposition at 24.)
In addition, the law eliminates the youth exception for crimes without statutory limitations. Previously, perpetrators of serious crimes, such as murder, who were younger than 21 years old could still be subject to a statute of limitations even though the crime itself was not subject to a statute of limitations. (35 kap. 2 § 2 st. BrB.) The new rules limit that exception to persons younger than 18 years old at the time of the crime. (35 kap. 2 § 2st BrB, as amended.)
The amendment does not remove the possibility of making other individual determinations during sentencing, and Swedish law still provides for reduced sentencing when several crimes have been committed at the same time (mändgrabatt) — meaning that if several crimes have been committed, the length of the prison sentence or sum of the monetary fine will not be an accumulation of all the prescribed sentences. (30 kap. 3, 4 §§ BrB.)
Also on January 2, 2022, amendments to the Act on Special Provisions for Young Offenders (Lag med särskilda bestämmelser om unga lagöverträdare (SFS 1964:167)) entered into force, eliminating the requirement for special reasons for sentencing persons aged 18 to 21 to more than three months’ imprisonment. (28 § Lag med särskilda bestämmelser om unga lagöverträdare (SFS 196:167).)The amendments (SFS 2021:1103 and SFS 2021:1104) do not change the rules for criminal offenders who are older than 15 but younger than 18.
Israel: New Procedures Instituted to Make Testifying in Sexual Offense Trials Less Traumatic for Complainants
On December 19, 2021, Israel’s justice minister, Gideon Saar, approved new regulations that aim to reduce the trauma of complainants providing ex parte testimony in sexual offense trials. (Regulations Amending Procedures (Interrogations of Witnesses) (Obtaining Testimony of a Complainant of a Sexual Offense Not in the Presence of the Defendant) (Amendment), (5782-2021) (2021 Amending Regulations).) The 2021 Amending Regulations amend the original Ex Parte Testimonies Regulations in effect from January 1, 1997.
Background to the New Regulations
The Ex Parte Testimonies Regulations and the 2021 Amending Regulations were based on the Rules of Procedure (Interrogation of Witnesses) (Amendment) Law, 5718-1957. As a rule, witnesses in a trial must testify in the presence of the defendant. A court adjudicating a criminal trial involving an accusation of a sexual offense, however, may allow the hearing of a complainant’s testimony not in the presence of the defendant. The court may do so
either on its own initiative or at the request of a party or the complainant, and if the complainant was a minor, at the request of the minor’s parent, before or during testimony … if it found that giving the testimony in the presence of the defendant is likely to harm the complainant or impair the testimony; testimony not in the presence of a defendant will be given outside the courtroom or in another way that will prevent the witness from seeing the defendant. (Rules of Procedure (Interrogation of Witnesses) (Amendment) Law, 5718-1957 § 2 B (a).)
In practice, ex parte testimonies have usually been heard in the courtroom in the presence of the judge, the victim of the offense, the defense, and the prosecution, while the defendant is in another courtroom. The defendant watches the testimony and can communicate with his attorney during the hearing.
Before the 2021 Amending Regulations entered into force, in order to allow ex parte testimony, the prosecution was required to present written evidence, most often requiring the submission of the opinion of a psychologist, doctor, or social worker, to prove that testifying in the presence of the defendant could cause harm to the complainant. This requirement has reportedly resulted in most of the adult victims testifying in the presence of the defendant.
Under the 2021 Amending Regulations, whether the defendant’s presence will likely harm the complainant or impair the testimony should be determined before the prosecution begins presenting its case in court. Furthermore, a decision to allow ex parte testimony may be based on information provided by the prosecution, on the litigants’ claims, and, only when necessary, on evidence provided in writing.
Impact of the 2021 Amending Regulations on Making Testimony by Complainants Less Traumatic
The 2021 Amending Regulations were adopted in response to a recommendation contained in a December 2019 report by the Inter-Ministerial Committee for Examination of the Treatment of Victims of Sexual Offenses in the Criminal Process, headed by retired Tel Aviv District Court President Deborah Berliner. According to the report’s recommendations, given the special characteristics of testimony by complainants of sexual offenses, it was appropriate to allow complainants to make an oral declaration regarding the difficulties of testifying in the presence of the defendant. Unless the court determined otherwise, there was no need for requiring evidence in writing to support the complainant’s request. (Inter-Ministerial Committee report at 21.)The requirement introduced by the 2021 Amending Regulations that the court make a decision on allowing ex parte testimony before the prosecution starts presenting its case, and not on “the same morning of the testimony,” aims to further decrease “the tension among the complainants, at a time when the procedure is difficult for them anyway.”
United States: U.S. District Court Denies Motion for Service of Process via Twitter in Cryptocurrency Value Manipulation Case
On December 13, 2021, the U.S. District Court for the District of Arizona issued a ruling in a class action case against Binance, one of the largest cryptocurrency exchanges in the world, that service of process through Twitter did not satisfy the requirements of Federal Rule of Civil Procedure 4(f). (Cox v. CoinMarketCap OpCo LLC, et al., No. CV-21-08197-PCT-SMB (D. Ariz. Dec. 14, 2021) (Case).) Rule 4(f) provides the framework for service of a summons on an individual in a foreign country, generally by procedures outlined in an international agreement (such as The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents) that will reasonably provide notice to the individual, or in a specific manner ordered by the court (so long as it is not prohibited by an international agreement). In this case, the plaintiffs filed a motion asking the court for leave to serve several defendants by providing the case documents to their “verified” Twitter accounts. (Twitter provides criteria for a “verified” account; these are also colloquially referred to as “blue check mark” accounts). (Case at 2.)
In its order denying the motion, the court concluded that because the plaintiff was unable to show what country the defendants resided in, the court could not determine whether service by Twitter would be a violation of international law. (Case at 3.)The court explained that it could order service of process by an alternative means so long as it found the method satisfied constitutional due process concerns and was not barred by an international agreement. (Case at 3.) The court agreed generally that other district courts had granted motions authorizing service via social media in other cases, but it distinguished the circumstances in the underlying case. (Case at 3–4.) For example, in a case out of the Northern District of California (St. Francis Assisi v. Kuwait Finance House, Case No. 3:16-cv-2340-LB (N.D. Cal. Sept. 30, 2016)), the court granted a motion to serve by Twitter because the defendant in that case was a resident of Kuwait, which is not a party to the Hague Convention, and service by Twitter would likely provide notice. (Case at 4.)The court explained that in this case, however, the plaintiffs alleged that the defendants may be residents of multiple countries (Taiwan, Singapore, Malta, and the United States), so it would not be possible for the court to determine if service by Twitter would violate the Hague Convention, stating that the plaintiff “merely speculates” as to the residences of the defendants. (Case at 3.)
On December 10, 2021, President’s Decision No. 4918 ratifying the Protocol to Amend the Paris Convention on Nuclear Third Party Liability (2004 protocol) was published in the Official Gazette, making Turkey a party to the protocol.
The Paris Convention and 2004 Amendment Protocol
The Paris Convention on Nuclear Third Party Liability is a multilateral international treaty establishing a legal regime governing liabilities arising from nuclear accidents. The convention provides for an exclusive and strict liability regime for the operator of a nuclear installation, including a benchmark liability figure and a minimum liability limit, a surety requirement for the operator, jurisdiction rules to determine the forum for the resolution of compensation claims, and a statute of limitations for the relevant claims. The 2004 protocol significantly increases the minimum liability limit, provides for a right to compensation for a broader range of harms, and extends the statute of limitation on compensation claims from 10 years to 30 years.
The protocol will enter into force for all contracting parties on January 1, 2022. (The unofficial consolidated version of the convention after the entry into force of the protocol is available on the Organisation for Economic Co-operation and Development (OECD) Nuclear Energy Agency’s website.)
The president’s decision includes a reservation to article 7(a) of the convention that will be deposited with the ratification instrument. The reservation reserves Turkey’s right to establish amounts of liability that are lower than the minimum amount established by the convention with respect to nuclear damages suffered in the territories, maritime zones, or ships and aircraft registered by another state if that state does not afford an equivalent amount of reciprocal benefits. This reservation is identical to those made to the same article by Denmark, Finland, France, the Netherlands, Slovenia, Spain, and Sweden.
Ratification of International Treaties Under Turkish Law
According to articles 90 and 104(11) of the Constitution of Turkey and article 3(3) of Presidential Decree No. 9 on the Ratification of International Treaties, major international treaties are ratified by the publication of the president’s decision ratifying the treaty in the Official Gazette. The president’s decision must be preceded by a “ratification approval law” enacted by the Grand National Assembly of Turkey, the country’s unicameral legislature.
Ratification Approval Laws
On October 17, 2021 two ratification approval laws were published in the Official Gazette. One concerned the ratification of the 2004 convention, while the other concerned the ratification of the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management (Joint Convention). While the president of Turkey completed the ratification process of the former, the Joint Convention is still pending the president’s decision necessary for its ratification. The Joint Convention sets up an international framework for the safe management of spent nuclear fuel and radioactive waste.
According to the OECD Nuclear Energy Agency’s website, Turkey is a party to the following multilateral treaties:
Nuclear safety and emergency response
- Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency
- Convention on Early Notification of a Nuclear Accident
- Convention on Nuclear Safety
- Amendment to the Convention on the Physical Protection of Nuclear Material
Nuclear security, non-proliferation and nuclear safeguards
- Treaty on the Non-Proliferation of Nuclear Weapons
- Convention on the Physical Protection of Nuclear Material
- Amendment to the Convention on the Physical Protection of Nuclear Material
- International Convention for the Suppression of Terrorist Bombings
- International Convention for the Suppression of the Financing of Terrorism
- International Convention for the Suppression of Acts of Nuclear Terrorism
- Comprehensive Nuclear-Test-Ban Treaty
Liability and compensation for nuclear damage
- Paris Convention on Nuclear Third Party Liability
- Protocol to Amend the Paris Convention on Nuclear Third Party Liability
- Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention
On December 13, 2021, the Knesset (Israel’s parliament) adopted the Prevention of Domestic Violence (Amendment No. 18 – Temporary Order) Law, 5782-2021 (Amendment Law) in order to implement courts’ authority to issue treatment orders in connection with protective orders. The Amendment Law provides procedures for implementing treatment orders for a period of five years, which may be extended for additional periods not exceeding three years in total. Extensions may be authorized by the minister of justice, with the consent of the minister of welfare and social security and the minister of finance, and with the approval of the Knesset Committee for the Advancement of the Status of Women and Gender Equality.
Upon or following the issue of a protection order, the court may require the submission of a treatment opinion by an authorized social worker regarding the suitability of the person named in the order for treatment and the availability of a spot in an appropriate therapeutic program that may meet the person’s needs. If the person is found to be suitable and a spot is identified, the court may order that they receive treatment within the proposed framework recommended in the opinion. The order will prescribe the means by which the court will be notified of the treatment progress, as well as the dates of the treatment. On receipt of the progress report, the court may request the parties’ response and may summon them in order to reexamine the protection order and its terms.
The Amendment Law provides that, beginning June 15, 2022, the minister of welfare and social security is to submit an annual report to the Knesset Committee for the Advancement of the Status of Women and Gender Equality on the implementation of the treatment order provisions. The report must include the number of persons named in protection orders who were subject to treatment opinions, the number of persons referred for treatment, and the number of persons who have completed their treatment process.
The Prevention of Domestic Violence Law, 5771-1991, as amended (the Law), authorizes circuit courts, family courts, and religious tribunals adjudicating cases within the jurisdiction of those courts to issue protection orders prohibiting the person named in the order from harassing or approaching members of a family, entering their property, or acting in any way that hampers or prevents them from lawfully using property under their possession. A protection order may also include a requirement for a compliance guarantee or any other provision that the court finds necessary to ensure that the named person does not jeopardize the safety and security of the family members. (Prevention of Domestic Violence Law, 5771-1991, as amended, § 2.)
The Law authorizes the court to require the named person to commit to a domestic violence treatment program to be administered by a body determined by the court. Treatment may be ordered only after the court has received a report by a social worker in accordance with the requirements of the Law. (§ 2 A.)According to the explanatory notes of the Bill for the Prevention of Domestic Violence (Amendment No. 19 – Temporary Order) (Treatment Order), 2020, however, “only several dozen violent men have been referred for treatment” since the authorization for the issue of treatment orders was enacted. Statistics published by the Welfare and Social Affairs Ministry in November 2021 show an increase in calls to the ministry’s domestic violence hotline in 2021. The Amendment Law is designed to facilitate implementation and compliance with domestic violence treatment orders.