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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.

Israel: Amendment Law Passed Allowing Early Release to Accommodate Prison Living-Space Requirements

(Dec. 12, 2018) On November 5, 2018, the Knesset (Israel’s Parliament) passed the Prisons Ordinance (Amendment No. 54 Temporary Provision) Law, 5779-2018 (Amendment Law) (SEFER HAHUKIM [SH] [BOOK OF LAWS] (official gazette) 5779 No. 2755 p. 44, Ministry of Justice website (in Hebrew; click on issue no. 2755).

The Amendment Law is designed to enable the Superintendent of the Prisons Authority to implement the Israeli Supreme Court’s decision of June 13, 2017, requiring that prisoners and detainees be provided with a minimum of 4.5 sq m (48.4376 sq ft) of living space when a toilet and shower are included, or 4 sq m (43.0556 sq ft) when they are not. (Prisons Ordinance (Amendment No. 54 Temporary Provision) Government Draft Bill, 5779-2018, Knesset Draft Bill No. 1229 p. 933 (May 30, 2018) (Draft Bill), Knesset website (in Hebrew).)

In its June 2017 decision, Israel’s Supreme Court, sitting as a High Court of Justice, accepted petitions submitted by several associations and ordered the state to gradually increase the personal living space allotted to every prisoner and detainee in the country to the abovementioned minimum within 18 months from the day the judgment was issued (i.e., by December 13, 2018). (HJC 1892/14 Association of Civil Rights in Israel v. Minister of Internal Security (June 13, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); see also Ruth Levush, Israel: Increase in Prisoners’ Living Space Mandated, GLOBAL LEGAL MONITOR (June 30, 2017).)

Other options besides expanding prison facilities that the Court said could be used to implement its decision are increasing probation periods and expanding opportunities for early release under proper supervision outside of prison. (HJC 1892/14 para. 126.)

According to the Draft Bill’s explanatory notes, the Amendment Law is intended to enable the Superintendent to order early release periods in accordance with those provided in the amended supplement. (Draft Bill p. 934, referring to § 3 of the Amendment Law.)

Early release may apply only to prisoners who have been sentenced to imprisonment for four years or less, or to those sentenced to longer periods whose release on probation has been approved in accordance with conditions enumerated in sections 3 to 5 of the Release on Probation Law, 5761-2001. (SH  No. 1795 p. 410, as amended; Amendment Law § 1.) Under the Amendment Law early release may be authorized only within the period of three years from the Amendment Law’s publication on November 7, 2018.

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Russia: Persons Under House Arrest Will Be Allowed to Vote

(Dec. 11, 2018) Russian citizens placed under house arrest will be allowed to vote according to a law approved by the Federation Council (lower house of the Federal Assembly) on December 5, 2018. (Citizens Placed Under House Arrest Will Be Able to Vote—State Duma], RAPSI (Nov. 22, 2018) (in Russian); Law No. 1063338-6 on Introducing Amendments into Selected Acts of the Russian Federation (Concerning the Procedures for Participating in Referendums Outside of Precinct Buildings), State Duma website (in Russian).)

The Law was initiated by the Legislative Assembly of one of Russia’s provinces, Ulyanovsk oblast. Answering questions from the Duma floor, one of the initiators of the Law, the chairman of the Ulyanovsk provincial Legislative Assembly, underscored the significance of the fact that persons placed under house arrest would be able to vote in elections and referendums in the same way as those who are jailed during criminal investigations. (Citizens Placed Under House Arrest Will Be Able to Vote—State Duma, supra.)

The Law institutes a new procedure whereby a person placed under house arrest can vote outside the precinct buildings using an absentee ballot on the basis of a proxy issued by the individual under arrest and received by a trusted person. (Bill on Enhancement of Rights of Persons Placed Under House Arrest Passes in First Reading, DUMA TV (July 4, 2018) (in Russian).) Under the Law the electoral commissions must supply mobile ballot boxes to facilitate voting by persons placed under house arrest. (Federal Law on Basic Guarantees of Electoral Rights and the Rights to Participate in the Referendum of Citizens, No. 67-FL, June 12, 2002, as amended, website (in Russian).)

According to the Law’s initiators, this new procedure was needed because the national passports of those who are under arrest or investigation are seized by the police, and passports serve as a mandatory voting ID for all Russian citizens. (Federal Law on Basic Guarantees of Electoral Rights and the Rights to Participate in the Referendum of Citizens, No. 67-FL.) Russians sentenced to imprisonment by a court judgment do not have voting rights during the course of their imprisonment. (CONSTITUTION OF THE RUSSIAN FEDERATION art. 32(3), Ministry of Foreign Affairs website.) While previous legislation protected voting rights of jailed suspects under investigation, it was silent about those who were placed under house arrest during the investigation process and before final sentencing by the court. (Federal Law on Basic Guarantees of Electoral Rights and the Rights to Participate in the Referendum of Citizens, No. 67-FL, art. 4(3).)

Despite the fact that the law passed easily in the Russian legislature, it was the subject of some criticism. In particular, the leader of the Liberal Democratic Party expressed the opinion that constant amendments and patches of electoral legislation are not sufficient—drafting of a new electoral code is long overdue. (State Duma Allows Persons Placed Under House Arrest to Vote, INTERFAX (Nov. 22, 2018).)

The Russian Constitution provides that, for the Law to be promulgated, it must be signed by the president of the Russian Federation within 14 days.  (CONSTITUTION OF THE RUSSIAN FEDERATION art 107.)

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Sweden: Parliament Limits Recognition of Child Marriages

(Dec. 10, 2018) On November 21, 2018, the Swedish Parliament (Riksdagen) passed legislation that will limit the instances in which child marriages are recognized in Sweden. (Förbud mot erkännande av utländska barnäktenskap, RIKSDAGEN (Nov. 21, 2018).)

Under the new provisions marriages that were conducted when one or both parties were underage will be recognized only after both parties turn eighteen and if motivated by synnerliga skäl (extraordinary reasons). (Civilutskottets betänkande 2018/19:CU4, Förbud mot erkännande av utländska barnäktenskap [Committee on Civil Affairs Report 2018/19:CU4, Prohibition of the Recognition of Foreign Child Marriages] (Bet. 2018/19:CU4).) Under current rules, such marriages can be recognized if none of the parties had a connection to Sweden at the time of marriage. (See 1 § Lag om om vissa internationella rättsförhållanden rörande äktenskap och förmyndarskap (Svensk författningssamling [SFS 1904:26 s. 1]).)

The new rules will take effect on January 1, 2019, and apply only to marriages that have been entered into on or after that date. Thus, the recognition of married persons already in Sweden will not be affected. (Bet. 2018/19:CU4, at 1.)

Child marriages and forced marriages (those involving social pressure) are illegal in Sweden, as is coercing someone to marry (using the threat of physical force). Having a child travel internationally under false pretenses to be married in another country is likewise illegal. (4 kap. 4c & 4d §§ BROTTSBALKEN (BRB) [CRIMINAL CODE].)

Child marriages came into the Swedish national spotlight during the 2015 refugee crisis when a number of underage girls were placed in living accommodations together with their adult husbands. Girls under the age of fifteen cannot consent to sexual relations in Sweden, whereas girls and boys aged fifteen and older may participate in consensual sex. Although the question mainly surrounded child brides fifteen and younger, members of Parliament were also questioning whether girls aged fifteen to eighteen should be placed in housing together with their husbands as it was unclear if real consent could ever be given. (Fredrik Malmberg, “Sverige ska utgå från ett skyddsperspektiv – barn kan aldrig samtycka till äktenskap,DAGENSJURIDIK (Feb. 4, 2016).) The Swedish National Board of Health and Welfare (Socialstyrelsen) published a brochure addressed “to those who are married to a child,” which drew heavy criticism and had to be withdrawn. (Sweden Struggles over Child Marriage, POLITICO (July 30, 2018); Malmberg, supra.)

The vote took place only weeks before a Swedish District Court sentenced a man to six months in prison after he had had intercourse with his thirteen-year-old wife on their wedding night in Turkey. The couple were from Syria, where child marriages reportedly are common, but were married in Turkey, where sex with a child of thirteen years of age was illegal. (See Isak Bellman, Hade sex med 13-årig hustru under flykten mot Sverige – döms för barnvåldtäkt, DAGENS JURIDIK (Nov. 5, 2018).)

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Israel: Knesset Passes Additional Provisions on Police Testing of Drivers’ Alcohol and Drug Levels

(Dec. 6, 2018) On November 5, 2018, the Knesset (Israel’s Parliament) passed an amendment law with new provisions regarding the testing of drivers’ blood and alcohol levels by the police. (Transportation Ordinance (Amendment No. 125) Law, 5779-2018 (SEFER HAHUKIM [SH] [BOOK OF LAWS] (official gazette) 5778 No. 2755 p. 40, Ministry of Justice website (in Hebrew; click on issue No. 2755) (Amendment Law); amending the Transportation Ordinance (New Version), DINE  MEDINAT YISRAEL (Nusah Hadash) (DMY) [LAWS OF THE STATE OF ISRAEL (New Version), The Revised and Updated Hebrew Text of Legislation Enacted Before the Establishment of the State] No. 7, p. 173 (1961), as amended (TA).

The Amendment Law establishes a presumption that for the purpose of determining the state of drunkenness, blood alcohol content identified in excess of permitted levels in a driver’s breath, urine, or blood test is presumed to have been present in the driver’s body three hours prior to the test. (Amendment Law § 1(1), amending § 64B(a)(3) of the TA.)

In addition, the Amendment Law authorizes a law enforcement officer to require a driver or a person who controls a vehicle (defined under § 12A(1) of the TA as a driving instructor or a person accompanying a new driver) to provide a saliva sample for testing for the presence of a “dangerous drug,” utilizing a preapproved testing kit. Dangerous drugs are defined under the Dangerous Drugs Ordinance (New Version) 1973-5733, DMY No. 27 p. 526 (1973), as amended. The authority to require submission to a saliva test does not depend on a suspicion that the person committed an offense under the Transportation Ordinance. (Id., adding § 64B(A3)(1) to the TA).

The presence of a dangerous drug in a person’s saliva may constitute a reasonable suspicion that the person was driving under the influence of alcohol or dangerous drugs, creating the grounds for conducting of a blood or urine test on the driver or the controller, even if he or she is unconscious. A saliva test result that does not indicate the presence of a dangerous drug does not diminish the law enforcement officer’s authority to demand a driver or the controller of a vehicle to provide a blood or urine sample as long as a reasonable suspicion arises in the course of the saliva sampling. (Id., adding § 64B(A3)(2–3) to the TA.)

The Amendment Law clarifies that a person cannot be convicted of driving under the influence solely on the basis of results of a saliva test. (Id., adding § 64B(A3)(4) to the TA.)

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Tunisia: Cabinet Approves Bill Requiring Equal Inheritance Shares for Men and Women

(Dec. 4, 2018) On November 25, 2018, the cabinet of Tunisia approved a bill that, for the first time in the nation’s history, would require that male and female heirs receive equal inheritance shares. Tunisia is the first among Arab countries to adopt such a bill. The bill will now be referred to the Tunisian Parliament for debate and voting. (Tunisia Becomes the First Arab Nation to Approve Gender Equality in Inheritance Law, DHAKA TRIBUNE (Nov. 25, 2018).)

Tunisian president Beji Caid Essebsi announced that his cabinet’s approval of the bill was based on article 2 of the Tunisian Constitution, which states that Tunisia is a civil country based on three elements: citizenship, the will of the people, and the supremacy of the law. He added that Tunisian men and women have equal rights and duties and the Tunisian government has an obligation to defend the rights of women. (THE CONSTITUTION OF THE TUNISIAN REPUBLIC, 2014, ConstitutionNet website.)

Reaction to the Bill Inside Tunisia

A 2017 survey by the International Republican Institute showed that 63% of Tunisians, including 52% of women, oppose equal inheritance shares. (Tunisia Cabinet Approves Equal Inheritance Law, MIDDLE EAST MONITOR (Nov. 12, 2018).)

Likewise, Muslim clerics in Tunisia voiced their opposition to the concept of gender-equality inheritance, arguing that the concept violates the Qur’an’s assertion that a woman’s share of an inheritance is half that of men: “God instructs you concerning your children: for the male, what is equal to the share of two females.” (Qur’an 4:11 (translation by author).) Tunisia’s former chief mufti (legal expert) criticized the concept of equal inheritance shares, saying that the Qur’an had clearly regulated inheritance and the proposal to change the concept would end 1400 years of consensus among Islamic scholars on the subject of inheritance. A former Tunisian religious affairs minister, Noureddine Khadmi, likewise declared that the proposal to change the concept of inheritance is “a flagrant violation of the precepts of Islam.” (Tunisia Clerics Oppose Equal Inheritance Rights for Women, NEWS24 (Aug. 17, 2017).)

Finally, the Islamist-oriented Ennahda Party, one of the main political parties in Tunisia, rejected the President’s initiative to propose a modification of the inheritance rule. Ennahda has 68 members in the Tunisian Parliament out of 217 seats. The party claims that the modification of the inheritance shares contradicts the religious teachings, Personal Status Code, and the customs of Tunisian society. (Tunisia: Ennahda Rejects Inheritance Equality, HUMAN RIGHTS WATCH (Sept. 6, 2018).)

Reaction to the Bill Outside Tunisia

In a press release issued by Egypt’s grand mufti, Dr. Shawki Allam, the Egyptian Dar Al-Ifta (Egypt’s main religious organization) expressed its objection to the inheritance bill adopted by the Tunisian cabinet. Dr. Allam stated that definitive (qat‘i) Shari‘ah rulings, such as the rulings on inheritance, are not subject to personal reasoning (ijtihad). (Egypt Mufti Condemns ‘Equal Inheritance’ as Tunisia Forwards Controversial Law, AL-ARABY (Nov. 26, 2018).) He continued by saying that the call for equality in inheritance between genders contradicts the Qur’an and the Sunnah, and this is not a matter subject to personal reasoning or change due to cultural contexts. He similarly added God’s will regarding the shares of each heir in the case of male and female children is expressed in Qur’an 4:11. Finally, he declared that under Islamic Law (Shari’ah), males are entitled to inherit double the females’ shares only in four cases, while both genders inherit equally in more than 30 cases. (The Call for Gender Equality in Inheritance Contradicts Shari’ah Definitive Rulings and Consensus of Scholars, Egypt’s Mufti States, DAR AL-IFTA (Nov. 26, 2018).)

Islamic scholars representing the Egyptian Islamic Institution of Al-Azhar (the oldest Islamic religious institution in the Arab countries), such as Mahmoud Mehanna, also oppose the Tunisian president’s initiative of modifying the inheritance rule. Mehanna stated, “Neither Tunisia, its president nor the whole world can legislate a law or innovate the religion of Allah.” (Al-Azhar Scholar Warns Tunisian President of Enacting Inheritance Law, MIDDLE EAST MONITOR (Aug. 15, 2018).)

Reaction of International Nongovernmental Organizations and Secular Feminist Groups 

Feminist activists in Tunisia supported the concept of equal inheritance shares for women and men. The Tunisian Feminist Association activist, Najet Gharbi, endorsed the concept by saying that “[i]t’s time to have full equality in inheritance and full liberties[.] We want our country to be free and we want people to live freely.” (Thousands Rally in Tunisia to Support Equal Inheritance for Women, THE AFRICA REPORT (Aug. 15, 2018).)

Secular activists supported President Essebsi’s bill in a popular march, known as “a march for inheritance rights.” Nabila Hamza, cofounder of the Tunisian Association for Democratic Women, stated that current inheritance law is a significant barrier for women in that it reduces their economic independence. (Brennan Cusack, Tunisia’s Equal Inheritance Law Could Boost Female Entrepreneurship, FORBES (Aug. 22, 2018).)

International nongovernmental organizations have expressed support for the inheritance equality bill. Human Rights Watch, for example, stated that the Tunisian authorities must enact such a bill because it guards individual freedoms and eradicates discrimination against women. (Tunisia: Landmark Proposals on Gender Bias, Privacy, HUMAN RIGHTS WATCH (July 28, 2018).)

 

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