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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Morocco: New Law Establishes Processes for Individuals to Challenge Constitutionality of Laws

(Apr. 25, 2018) On February 6, 2018, Morocco’s Parliament approved, in accordance with article 133 of the 2011 Moroccan Constitution, Law No. 15.86 Concerning the Determination of the Conditions and Modalities of Raising the Issue of Unconstitutionality of a Law. (Law No. 15.86 Concerning the Determination of the Conditions and Modalities of Raising the Issue of Unconstitutionality of a Law, website of the Ministry in Charge of Relations with the Parliament (in Arabic).)

According to article 133 of the 2011 Moroccan Constitution,

[t]he Constitutional Court is competent to take cognizance of a pleading of unconstitutionality raised in the course of a process, when it is maintained by one of the parties that the law on which the issue of the litigation depends, infringes the rights and freedoms guaranteed by the Constitution.

An organic law establishes the conditions and modalities of application of this Article. (MOROCCO’S CONSTITUTION OF 2011, art. 133, Constitute Project website; CONSTITUTION OF THE KINGDOM  OF MOROCCO, 29 July 2011 (2011 CONSTITUTION), art. 133, Supreme Judicial Institute website (in Arabic).)

Article 134 of the Constitution states that “[a] provision declared unconstitutional on the foundation of Article 133 is abrogated counting from the date specified by the Constitutional Court in its decision.” (2011 CONSTITUTION, art. 134.)

Under Law No. 15.86, private litigants are allowed to raise the issue of constitutionality before any courts, including for the first time the Court of Appeals and the Court of Cassation. (Law No. 15.86, art. 3.)  In other words, even if the litigant did not raise the issue of constitutionality before the lower court, he or she can still bring it up before the higher courts, including the Court of Cassation.

Article 5 of Law No. 15.86 requires that the concerned litigant raise the issue of unconstitutionality in a written memorandum that meets the following conditions:

  • It must be signed by the concerned party or by an attorney duly admitted to any of the bar associations in Morocco.
  • It must be accompanied by the appropriate fee, unless the concerned party has been authorized to proceed in forma pauperis.
  • It must indicate the provisions of the law that are unconstitutional.
  • It must explain the reasons why such provisions are unconstitutional.
  • The raised issue must be one that has been or may be applied in the case.
  • The issue raised must not been have been previously determined. (Id. art. 5.)

If the court before which the issue is raised is satisfied that the memorandum meets all the abovementioned conditions, it must send the memorandum to the Court of Cassation within eight days from the date of its filing. (Id. art 6.)

The  Court of Cassation must issue a reasoned decision within three months from the date it receives the memorandum, either directly or from a lower court, and is then required to send the decision to the Constitutional Court. (Id. art. 11.) If the Court of Cassation fails to issue its decision within the prescribed time limit, the memorandum must be automatically sent to the Constitutional Court. (Id. art. 12.)

The Constitutional Court is composed of twelve members: six are appointed by the King, one of the six having been recommended by the Secretary General of the Superior Council of the Ulema; three are appointed by the Chamber of Representatives; and three are appointed by the Chamber of Councilors (with the appointments by the two Chambers requiring a two-thirds majority). (2011 CONSTITUTION, art. 130.)  The King appoints the President of the Court from among its members. (Id.)

The jurisdiction of the Constitutional Court is to “exercise[] the attributions which are devolved on it by the Articles of the Constitution and the provisions of the organic laws,” and to decide on “the regularity of the election of the members of Parliament and of the operations of referendum.” (2011 CONSTITUTION, art. 132.) An organic law describing the jurisdiction of the Constitutional Court in accordance with article 132 of the Constitution was enacted on August 13, 2014. (Organic Law No. 066.13 of 2014, Chamber of Representatives website (in Arabic).)

Originally, under a previous constitution, the constitutional review function was assigned to a Constitutional Chamber of the Supreme Council. (1962 CONSTITUTION, arts. 100–103, Digithèque de matériaux juridiques et politiques website (in French).) A separate Constitutional Court was established in 1992. (1992 CONSTITUTION, arts. 76–79, ConstitutionNet website (in Arabic).)  In both instances the ability to challenge the constitutionality of any law was not open to private litigants.

The 2011 Constitution is the first of Morocco’s constitutions to allow private litigants to challenge the constitutionality of laws.

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Germany: Companies May Exclude Spouses Who Are More than 15 Years Younger than the Deceased from Survivors’ Benefits

(Apr. 25, 2018) In a decision published on April 11, 2018, the German Federal Labor Court (Bundesarbeitsgericht, BAG) ruled that a clause in an occupational pension agreement that excludes from survivors’ benefits spouses who are more than 15 years younger than the deceased former employee does not constitute discrimination on the grounds of age. (BAG, Feb. 20, 2018, Docket No. 3 AZR 43/17, BAG website (in German).)

Background

The plaintiff, who was born in 1968, is the widow of a retired employee 18 years her senior who died in 2011 and had been granted a spouse’s pension promise by his former employer. The defendant in this case is an insolvency insurance company, since insolvency proceedings were instituted against the former employer’s assets in 2010. (BAG at 2 et seq.)

The occupational pension agreement in question stated that, upon the death of a beneficiary, the surviving spouse is eligible for a spouse’s pension only if the surviving spouse is not more than 15 years younger than the deceased employee. (Id.) The plaintiff claimed that this age difference clause (Altersabstandsklausel) is inadmissible discrimination on the grounds of age and therefore void. (Id. at 4.)

In principle, according to German law, any discrimination on the grounds of age in relation to employment and working conditions is not allowed. (Allgemeines Gleichbehandlungsgesetz [AGG] [German General Act on Equal Treatment] Aug. 14, 2006, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1897; as amended, § 1, § 2, para. 2, no. 2, § 7, para. 1 (unofficial English translation), German Laws Online website.)  A provision in an agreement which violates the prohibition of discrimination is void. (Id. § 7, para. 2.) However, a difference of treatment on grounds of age does not constitute discrimination if it is objectively and reasonably justified by a legitimate aim. (Id. § 10, para. 1, sentence 1.) Moreover, the means of achieving that aim must be appropriate and necessary. (Id. § 10, para. 1, sentence 2.)

The plaintiff brought an action before the Labor Court of Cologne seeking payment of survivors’ benefits under her husband’s occupational pension plan. While the court of first instance dismissed the claim, the Higher Labor Court of Cologne (Landesarbeitsgericht Köln) essentially ruled in favor of the plaintiff. The defendant appealed the ruling of the second instance to the BAG. (BAG at 5–7.)

Decision

The BAG upheld the ruling by the court of first instance. The Court held that the defendant is not obligated to pay the plaintiff a survivor’s pension. (Id. at 8–10.)

The BAG stated that the exclusion of spouses who are more than 15 years younger than the deceased employee constitutes direct discrimination against the employee on the grounds of age. The BAG explained that the clause referring to the age difference between the beneficiary and his or her spouse can affect only employees who are at least 33 years old. This is because in Germany a person cannot enter into a marriage before he or she reaches the age of 18. (Id. at 19.)

However, the BAG held that the discrimination was justified since the former employer pursued a legitimate aim by using the age difference clause. The BAG stated that the relevant German provisions implement EU Council Directive 2000/78/EC, according to which objectives related to employment policy, the labor market, and vocational training can serve as legitimate aims. The Court found that using age difference clauses to strike a balance between the different interests involved in order to the make occupational pensions available to a broader public is a legitimate aim in this context, as is limiting the financial risks of granting spouses’ pensions. An employer has a legitimate interest in maintaining a manageable and calculable liability for occupational pension benefits. (Id. at 16, 23–28; Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation art. 6, para. 1, 2000 O.J. (L 303), 16, EUR-Lex website.)

The Court further stated that the exclusion at issue is also appropriate and necessary. The measure allows the employer to limit the financial risks, and the legitimate interests of the affected employees are not unduly impaired. Where the difference in age between the spouses is more than 15 years, the marriage is a priori designed in a way that the surviving spouse will live a part of his or her life without the beneficiary. As more than 80% of all married couples in Germany have an age difference of less than seven years, it is justified to exclude spouses from survivors’ benefits where the difference in age deviates significantly from the average age gap, according to the BAG. The BAG concluded that no other solution was possible as clauses providing a reduction of the spouse’s pension for exceeding the 15-year age difference on the basis of actuarial methods or the postponement of the commencement date for payments is not as effective as the complete exclusion of the spouses concerned. (BAG at 29–34.)

Prepared by Catharina Schmidt, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

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Italy: Constitutional Court Annuls Legislation Permitting Continuation of Activities by an Industrial Facility of National Strategic Interest

(Apr. 23, 2018) On February 7, 2018, the Italian Constitutional Court declared the unconstitutionality of several legal provisions that allowed the continuation of activities at industrial facilities considered of national strategic interest in violation of constitutionally protected workers’ rights. (Decision No. 58 of March 23, 2018, Issued in a Constitutional Legitimacy Case by Incidental Procedure (the Decision), GAZZETTA UFFICIALE [OFFICIAL GAZETTE] [G.U.] Mar. 28, 2018, G.U. website (in Italian).)

Background of the Case

In 2015 the Public Prosecutor of the city of Taranto ordered the urgent preventive seizure of the blast furnace and industrial plant of a company because it had allegedly violated several legal provisions requiring it to adopt measures to protect its workers from incandescent materials emanating from the furnace that killed a worker. (Decision, considerations of fact, ¶ 1.2.) The defendant company challenged the Public Prosecutor’s seizure order before the Ordinary Tribunal of Taranto.  That court reviewed the dispute under Decree-Law 92 of 2015 which, among others, permitted judicial seizure orders regarding alleged crimes against worker safety in nationally strategic industries, provided for the suspension of company activity for a maximum of 12 months, and mandated that the company adopt a plan for the protection of safety at workplaces referred to in the seizure order within 30 days of its adoption. (Decree-Law No. 92 of July 4, 2015, on Urgent Measures on Waste and Integrated Environmental Authorization, as well as on the Exercise of the Activity of Industrial Companies of a National Strategic Interest art. 3, ¶¶ 1–3, G.U. July 4, 2015, G.U. website (in Italian).)

Arguments on the Constitutionality of the Challenged Legislation

The defendant industry requested that the Public Prosecutor permit the continuation of its economic activities at its facilities in accordance with the requirements established in article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.3.)  The Public Prosecutor opposed the request on various grounds, and requested that the case be sent to the Italian Constitutional Court to decide on the constitutionality of article 3 of Decree-Law No. 92 of 2015. (Decision, considerations of fact, ¶ 1.4.)

Ordinary Tribunal of Taranto Raises Constitutional Concerns

The Ordinary Tribunal of Taranto through a judicial decree of July 14, 2015, raised before the Italian Constitutional Court the matter of the constitutionality of article 3 of Decree-Law No. 92 of 2015 and other relevant provisions.  (G.U. Aug. 20, 2015, G.U. website (in Italian) (Decision, holding).  It argued that article 3 of Decree-Law No. 92 of 2015 potentially violated the following principles of the Italian Constitution (COSTITUZIONE DELLA REPUBBLICA ITALIANA [CONSTITUTION OF THE ITALIAN REPUBLIC], Italian Senate website; Italy’s Constitution of 1947 with Amendments Through 2012 (CONST.), Comparative Constitutions Project website):

  • The fundamental and inviolable rights of the human person (CONST. art. 2), by allowing a company to operate facilities that are dangerous to human life and safety (Decision, considerations of fact, ¶ 1.8).
  • Equality under the law (CONST. art. 3), by creating an unjustified privilege for companies of national strategic interest, which would abide by a lower safety standard than other economic operators, causing workers to be exposed to higher risks (Decision, considerations of fact, ¶ 1.9).
  • The right to health of citizens/workers (CONST. art. 32), endangering their personal safety by failing to exercise a reasonable balance with other constitutional rights (Decision, considerations of fact, ¶ 1.11).
  • Developing private economic activity without causing damage to human safety, freedom, and dignity (CONST. art. 41, ¶ 2) by permitting the operation of a dangerous facility (Decision, considerations of fact, ¶ 1.12).
  • The obligation of the Public Prosecutor to institute criminal proceedings (CONST. art. 112), in particular because the constitutional mandate requires not only the suppression of a crime but also its prevention, which, in this case, would have required the permanency of the seizure measure (Decision, considerations of fact, ¶ 1.13).

Considerations of the Constitutional Court on the Merits of the Case

The Court ruled that in the case under review, the legislature did not respect the constitutional mandate to strike a reasonable and proportional balance of all the relevant constitutional interests converging in the case. (Decision, considerations of law, ¶ 3.2.) The Court held that article 3 of Decree-Law No. 92 of 2015 violated several constitutional guarantees, among other reasons, by requiring an exclusively unilateral plan in case of judicial seizure, by failing to establish immediate and timely actions aimed at swiftly removing the danger to the safety of workers, and by allowing economic activity to continue during the period of the seizure. (Id.)

The Court concluded that article 3 had created an unusual privilege under the Constitution for certain economic activities to the detriment of important constitutionally-protected rights, in particular, with respect to workers’ safety (Decision, considerations of law, ¶ 3.3) and declared the unconstitutionality of article 3 of Decree-Law No. 92 of 2015, and related provisions (Decision, considerations of law, ¶ 4).

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Malaysia: Anti-Fake News Act Comes into Force

(Apr. 19, 2018) The Anti-Fake News Act 2018 was published in the Federal Gazette of Malaysia on April 11, 2018, coming into effect that day. (Anti-Fake News Act 2018 (Act 803), Federal Gazette website.) The Act was passed by the Malaysian Parliament on April 4 and received Royal Assent on April 9.

The Act defines “fake news” as including

any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas. (Id. s 2.)

Section 4 of the Act sets out the offense of “creating, offering, publishing, etc., fake news or publication containing fake news,” stating that

[a]ny person who, by any means, maliciously creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit [about US$128,575] or to imprisonment for a term not exceeding six years or to both, and in the case of a continuing offence, to a further fine not exceeding three thousand ringgit [about US$771] for every day during which the offence continues after conviction. (Id. s 4.)

During the debate in the Parliament, the word “knowingly” was changed to “maliciously” in this section, and the penalty was reduced from a maximum of ten years of imprisonment to six years. (G. Surach, Its [sic] Official, the Anti-Fake News Act 2018 Comes into Force Today, SUN DAILY (Apr. 11, 2018).)

The Act provides for the extraterritorial application of this offense, stating that where an offense is committed by any person, whether a Malaysian citizen or not, outside of Malaysia, and where the fake news concerns Malaysia or affects a Malaysian citizen, it may be dealt with as if it was committed within Malaysia. (Anti-Fake News Act 2018, s 3.)

The Act also enables people affected by the publication of fake news to apply for a court order requiring the removal of the publication. (Id. s 7.) The government is able to make such an application, and the Act provides that where a person is subject to an order obtained by the government in relation to a publication that is prejudicial, or likely to be prejudicial, to public order or national security, he or she cannot apply for the order to be set aside. (Id. s 8(3).) Where a person does not comply with a removal order, the police can be authorized by the court to “take the necessary measures to remove such publication.” (Id. s 9(1).)

Rationale for the Act

In a set of questions and answers, the minister in the Prime Minister’s Department with responsibility for the bill, Azalina Othman, stated that

[t]he issue of dissemination of fake news is a global problem, following the technological communication revolution, which is happening at a rapid pace. Of late, Malaysia has faced numerous challenges as an effect from fake news which not only confuses the public but can also threaten the safety, economy, prosperity and well-being of the people and the country.

. . . .

We have to understand that although there are relevant laws, but until today, the rapid and complex development of communications technology means the problem still cannot be managed effectively. What [sic] more, these laws, such as the Penal Code, Printing Presses and Publications Act 1984, and Communications and Multimedia Act 1998, were drafted during or before the 1990s, and could not address the nature of increasingly complex offences in line with rapid technological progress. (Nazura Ngah, FAQs: What You Need to Know About the Anti-Fake News Bill 2018, NEW STRAITS TIMES (Mar. 26, 2018).)

She stressed that there were no existing laws directly related to fake news, and that other countries had also realized that “fake news is a global threat to the world of information, and needs to be tackled swiftly and effectively,” with the Philippines also having drafted a bill on the issue. (Id.) She also said that the government had decided to “allow a neutral and fair party, which is the courts, to decide, which is by due process of law. The courts will have the power to rule on the disposal of any publication deemed to contain fake news.” (Id.) In response to criticism of the bill, she said that the claim that it would curtail freedom of speech is “unsubstantiated and politically-motivated” and highlighted other actions of the government that had furthered the right to free speech in the country. (Id.)

Application of the Act

Police in Malaysia have reportedly already started to apply the new Act, with an investigation being initiated in mid-April 2018 in Johor Bahur regarding “a hoax claiming that the Johor Crown Prince Tunku Mahkota Johor Tunku Ismail Sultan Ibrahim would be footing the bill of shoppers at several supermarkets in the state.” (Ibrahim Isa, Hoax Over TMJ’s Cash Giveaway 1st Case Probed Under Anti-Fake News Law, NEW STRAITS TIMES (Apr. 13, 2018).)

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Germany / European Court of Human Rights: Caning of Children Justifies Withdrawal of Parental Authority

(Apr. 19, 2018) On March 22, 2018, the European Court of Human Rights (ECtHR) unanimously held in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany that the withdrawal of the applicants’ parental authority did not violate article 8 of the European Convention on Human Rights (ECHR), which grants the right to respect for private and family life. The applicants, members of the Twelve Tribes Church living in communities in Bavaria, had challenged German court decisions that partially withdrew their parental authority and placed their children in foster care because the applicants continuously punished their children by caning. (Tlapak and Others v. Germany, App. Nos. 11308/16 & 11344/16 (Eur. Ct. H.R., 2018), ECtHR website; Wetjen and Others v. Germany, App. Nos. 68125/14 & 72204/14 (Eur. Ct. H.R., 2018), ECtHR website; Convention for the Protection of Fundamental Rights and Freedoms (European Convention on Human Rights) (ECHR), art. 8, Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website).

Background

The Twelve Tribes Church is a Christian religious community centered on the Apostolic Age of Christianity. Among other beliefs, the members of the community maintain that corporal punishment of children by caning is prescribed by their particular faith, relying on several sections of the Bible for evidence. (Ulrike Heidenreich, Abgewiesene Klage der “Zwölf Stämme” – Eine Wohltat für die Rechte von Kindern [Rejected Lawsuit of the “Twelve Tribes” – A Blessing for Children’s Rights], SUEDDEUTSCHE (Mar. 22, 2018).)

For over ten years, the Twelve Tribes communities in Bavaria have clashed with the local authorities many times over issues like homeschooling (which is generally not allowed in Germany) and corporal punishment. Repeatedly, the police have taken children away from their parents and placed them in the care of foster families, and attempts have been made to prosecute the parents and teachers for causing bodily harm to the children entrusted to them. (Christian Rost, Prügelnde Sekte “Zwölf Stämme“ nach Tschechien übergesiedelt [Beating Sect “Twelve Tribes” Relocates to Czech Republic], SUEDDEUTSCHE (Jan. 4, 2017).) In 2013, after video footage of the systematic practice of caning even very small children was brought to the public’s attention, the police raided two communities in Bavaria and separated 40 children from their parents. (Heidenreich, supra.)

According to article 6, paragraph 2 of the German Basic Law—the German Constitution—parents generally have the right and obligation to care for and raise their children as they see fit under the supervision of the state. (Grundgesetz [GG] [Basic Law], May 23, 1949, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 6, para. 2.) On the other hand, article 1, paragraph 1 and article 2, paragraph 2 of the Basic Law also guarantee human dignity and children’s right to physical integrity. Moreover, in 2000, the right of children to a nonviolent upbringing was codified in section 1631, paragraph 2 of the German Civil Code. (BÜRGERLICHES GESETZBUCH [BGB] [CIVIL CODE], Jan. 2, 2002, BGBl. I at 42, 2909; 2003 BGBl. I at 738, as amended, German Laws Online website). Section 1666, paragraph 1 of the Civil Code provides that courts can order necessary measures if the well-being of children is at risk and the parents are unwilling or unable to avert the risk. (Id.)

Facts of the Case

 The applicants—four families belonging to Twelve Tribes Church communities in Bavaria—challenged German family court decisions that in part withdrew their parental authority and ordered that their children be placed in children’s homes and foster families.

After the widespread caning of children by the members of the Twelve Tribes Church was made public, the local child welfare services initiated interim proceedings before the family courts, which partially withdrew the parental authority and authorized some children to be placed with foster families. In the main proceedings that followed, the family courts came to the conclusion that the caning constituted child abuse and the separation of the families was justified because, as the parents insisted that corporal punishment was a legitimate child-rearing method, the child abuse was expected to continue. The Court of Appeal dismissed the applicants’ appeal and the Federal Constitutional Court refused to hear the applicants’ constitutional complaints. (Tlapak and Others v. Germany, paras. 7–49; Wetjen and Others v. Germany, paras. 7–24.)

The applicants claimed that these decisions violate their right to respect for private and family life (ECHR, supra, art. 8) and that the proceedings before the German family courts were not only excessively long but also unfair, being based only on general perceptions regarding their religious community (id. arts. 6 & 8). Moreover, the applicants invoked articles 9 and 14 in conjunction with article 8 of the ECHR and article 2 of Protocol No. 1, alleging that they were deprived of the opportunity to raise their children in accordance with their religious beliefs and that, as their religion was the reason for the withdrawal of parental authority, their religious community was stigmatized by the courts’ decisions. (Tlapak and Others v. Germany, para. 3; Wetjen and Others v. Germany, para. 3.)

Decision

 The ECtHR rejected the applicants’ claims in Tlapak and Others v. Germany regarding excessively long main proceedings before the family courts because the proceedings took only one year and eleven months and the courts did not cause any particular delays. (Tlapak and Others v. Germany, paras. 65–66.) In the case of Wetjen and Others v. Germany, the German government made a declaration recognizing a violation of article 8 of the ECHR due to the length of the interim proceedings before the family courts, thus removing the issue from the scope of the decision. (Wetjen and Others v. Germany, paras. 42–43, 45–48.)

Furthermore, the ECtHR decided that the risk of inhuman or degrading treatment of children, which is prohibited in absolute terms in article 3 of the ECHR, justified the partial withdrawal of parental authority and the splitting up of the families. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)

Thus, the Court concluded that the German courts had struck the right balance between the conflicting rights at issue and had not violated the ECHR in their decisions. (Tlapak and Others v. Germany, paras. 97–101; Wetjen and Others v. Germany, paras. 84–87.)

Aftermath

In the meantime, the families of the Twelve Tribe Church communities in Bavaria have moved to the Czech Republic, where corporal punishment of children is not prohibited conclusively and comprehensively. (Heidenreich, supra.)

Prepared by Felicia Stephan, Law Library intern, under the supervision of Jenny Gesley, Foreign Law Specialist.

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