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Netherlands; Norway: Dutch Prisoners Sue Unsuccessfully to Prevent Transfer of Norwegian Convicts to Luxury Cells

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(Mar 30, 2015) A Dutch court ruled on March 6, 2015, that long-term prisoners, serving ten years to life imprisonment, who currently live in "luxury cells" in Norgerhaven Prison must give up them up to make way for Norwegian convicts who are to be transferred to the facility based on an agreement reached between The Netherlands and Norway. (Dutch Cons Must Vacate Cells for Norway: Court, THE LOCAL (Mar. 6 2015).) The "luxury cells" have views of the countryside, and the prisoners can cook their own food, grow vegetables, and keep chickens. They also enjoy a generous period of daily exercise, their own hobby space, 55-channel individual televisions, and the option to paint a wall of their cells a color of their choosing. (Id.; Jan Hennop, Dutch, Norwegian Convicts Angry over 'Luxury' Cell Deal, YAHOO (Mar. 2, 2015) [has picture of a Norgerhaven cell].) )

The District Court of The Hague ruled against the 18 Dutch inmates who had brought suit against the government in an attempt to stop the transaction. (Dutch Cons Must Vacate Cells for Norway: Court, supra; ECLI:NL:RBDHA:2015:2352, Rechtbank den Haag, Case No. C-09-481220 KG ZA 15-65 (Mar. 6, 2015).) In the judge's view, "the hiring out of the Norgerhaven prison to Norwegian authorities to house Norwegian prisoners is not unlawful," but he determined that the state must "present the plaintiffs with an adequate alternative," which would "focus on the same special detention regime for long-term prisoners should they be transferred there." (Dutch Cons Must Vacate Cells for Norway: Court, supra.) However, the court denied the prisoners' petition that if transferred they be transferred as a group. The court also noted that if Norgerhaven is made available to the Norwegian authorities after parliamentary approval, it must be done in accordance with the provisions of the Prisons Act on prisoner transfer decisions. (ECLI:NL:RBDHA:2015:2352, supra, ¶¶ 4.8 & 4.9.)

The Agreement

The agreement, signed on March 2, 2015, involves the transfer of 242 Norwegian prisoners to the Netherlands, for €25 million. Norway is seeking to reduce the backlog of its criminals, numbering over a thousand, who are waiting to serve their sentences, while the Netherlands has been in the process of shutting down a number of prisons. According to Norwegian Minister of Justice and Public Security Anders Anundsen, "[f]or Norway this is historic," being "the first time we have entered into such an agreement with another country." (Norway Signs Deal to Rent Dutch Prison Places, THE LOCAL (Mar. 2, 2014).)

The agreement will apply provisionally for three years, with the option of a one-year extension. A Norwegian director will be appointed to run Norgerhaven and oversee a Norwegian prison regime; the rest of the staff will remain Dutch. The agreement provides for 239 full-time employees to remain employed within the prison system. Employees will receive training in Norwegian law and prison culture and will also be given the opportunity to take an English course. If possible, the first prisoners are to be transferred on September 1, 2015. (Noorse gevangenen in september naar Nederland [Norwegian Prisoners to Netherlands in September], Custodial Institutions Agency [Dienst Justitiële Inrichtingen, DJI] of the Ministry of Security and Justice website (Mar. 2, 2015).)

A Norwegian government advisory body conducted an analysis in 2013 indicating "that there is a significant backlog of maintenance work needed to be carried out in Norwegian prisons, estimated to cost between NOK 3.3 and 4.4 billion. It is possible that the maintenance work will cause prisons or branches of prisons to close temporarily." (Press Release, No. 53, Talks on Leasing Prison Capacity in the Netherlands, GOVERNMENT.NO (Sept. 8, 2014).)

Reportedly, the only other arrangement of this kind in Europe is an agreement between Belgium and The Netherlands; since 2010, 500-600 Belgian convicts have been held in Dutch prisons. (Tove Gravdal, Mangler flertall for fengselsplan [Lack of a Majority for Prison Plan], MORGENBLADET (Feb. 13, 2015).) The Dutch have predicted that in the next five years, the prisons will have about 700 prison cell vacancies.

Dutch prisoners are not the only parties dissatisfied with the agreement. The policy is not entirely welcome in Norway, either. Hadia Tajik, deputy leader of the Labour Party opposition, has argued "that the money would have been better spent upgrading and expanding Norwegian prisons." (Norway Signs Deal to Rent Dutch Prison Places, supra.) The Norwegian organization "For Relatives of Prisoners" (For Fangers Pårørende, FFP), which provides advice and support to prisoners' relatives and works to raise awareness of their situation and needs, issued a consultation paper criticizing the proposal to rent prison capacity abroad and suggesting the use of alternative measures. (Høringsuttalelse fra For Fangers Pårørende (FFP): Om endringer i straffegjennomføringsloven (straffegjennomføring i annen stat mv) [Submission of For Relatives of Prisoners (FFP): On Changes in the Act on Execution of Punishment (Sentences in Another State, etc.)], FFP (Mar. 6, 2015).)

Future Steps

For the agreement to take effect, the Norwegian Parliament must approve it and also adopt an amendment to the Act on the Execution of Punishment, etc. (Sentencing Act) [Lov om gjennomføring av straff mv. (straffegjennomføringsloven)]. The plan and the proposed amendments are reportedly to be sent to the Parliament in April (Norway Signs Deal to Rent Dutch Prison Places, supra; Gravdal, supra.) The Dutch Parliament must also approve the agreement and amend its own Prisons Act (Penitentiaire beginselenwet), as the court had indicated. The objective is to start sending Norwegian convicts to the Dutch facility in the summer of 2015. (Gravdal, supra.)

Author: Wendy Zeldin More by this author
Topic: International affairs More on this topic
 Prisoners' rights More on this topic
 Sentencing More on this topic
Jurisdiction: Netherlands More about this jurisdiction
 Norway More about this jurisdiction

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Indonesia: Jakarta Court Bans Water Privatization

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(Mar 30, 2015) On March 24, 2015, the Central Jakarta District Court ruled that provision of water in the city of Jakarta could not be privatized. The decision came in a case filed by the Coalition of Jakarta Residents Opposing Water Privatization (the Coalition) in March 2013; the Coalition comprised city residents, trade unions, and water justice activists. The decision in effect annulled a public-private partnership that had been formally concluded by the city and two private water businesses, Palyja and Aetra, in June 1998 that had been planned to last until 2023. (Corry Elyda & Dewanti A. Wardhani, Palyja, Aetra to Appeal Water Verdict, JAKARTA POST (Mar. 26, 2015); Jakarta Court Cancels World's Biggest Water Privatisation After 18 Year Failure, Transnational Institute website (Mar. 25, 2015).)

The Coalition's suit against the city covered the initial decision to privatize water resources and the poor service record of the private companies. Water leakage levels were reported to be as high as 44% in Jakarta, and the price for the water increased from Rp1,700 to Rp7,020 (about US$0.13 to $0.54) per cubic meter, a rate 2.7 times that charged by the public water utility in Surabaya, the second largest city in the country. (Jakarta Court Cancels World's Biggest Water Privatisation After 18 Year Failure, supra.)

Iim Nurohim, the presiding judge of the Court, stated that the "defendants have been negligent in fulfilling Jakarta residents' right to water." (Elyda & Wardhani, supra.) He ordered the end of the privatization of water, calling the existing agreement null and void. According to the Coalition, in the time since the agreement was concluded, only 60% of the residents have received piped, clean water. The judge also noted that PAM Jaya, the city-owned partner in the water agreement, had lost Rp1.17 trillion (about US$90 million) since the arrangement began, because the structure of the agreement favored the private firms. (Id.)

Reaction of the Companies

Both Palyja and Aetra intend to appeal the Court's decision. Meyritha Maryanie of Palyja expressed surprise and disappointment about the decision, but added, "[w]e have decided to appeal the verdict. Therefore, the cooperation contract remains in full force and effect until the future ruling." (Id.) Pratama S. Adi of Aetra concurred, stating that the company would submit documents to appeal the decision next week and would continue to invest in the water business. (Id.)

Reaction of Local Government

Basuki "Ahok" Tjahaja Purnama, Jakarta's Governor, spoke about the situation on March 25, saying that due to the appeal, the city could not comply with the Coalition's wish that the administration immediately take control of water resources. He added that he hoped for a quick resolution. Prior to the District Court's decision, the city had planned to acquire shares in Palyja, through PAM Jaya, in the hope that water services would be improved; Ahok indicated that the administration would pursue the acquisition of shares, in addition to restructuring the leadership of PAM Jaya. (Id.)

Reaction of Water Rights Advocates

The decision was hailed by Rosa Pavanelli, General Secretary of Public Services International, a trade union federation. She said, "[y]esterday's decision is a success for the Jakarta citizens and workers, but also for the global water movement." (Jakarta Court Cancels World's Biggest Water Privatisation After 18 Year Failure, supra.)

Similar views were expressed by Fiona Dove, Executive Director of the, Transnational Institute, who called the decision a "citizen's victory" and said that it "will give an enormous boost to the growing global trend of cities overturning failed privatizations and taking back control over critical water services. This will empower many more local governments to close the book on privatization, which has proven socially and economically unsustainable across the world." (Id.) The Transnational Institute describes itself as an "international research and advocacy institute committed to building a just, democratic and sustainable planet." (Introduction, Transnational Institute website (Apr. 9, 2009).)

Nila Ardhianie, Director of Amrta Institute for Water Literacy, an organization located in Indonesia, said, "[f]or Jakarta, the ball is now in the governor's court. Together, we can build a strong public utility for all Jakartans. We can also get help from strong public utilities, both in Indonesia and from overseas, but without the distortions of profit maximization." (Jakarta Court Cancels World's Biggest Water Privatisation After 18 Year Failure, supra; About Us, Amrta Institute for Water Literacy website(last visited Mar. 30, 2015).)

Recent, Related Decision

The District Court decision is consistent with the February 18, 2015, Constitutional Court action that revoked as unconstitutional the 2004 Law on Water Resources. That Law had permitted private sector companies to sell packaged tap water. The decision means that private companies will not be able to have exclusive control of water resources. (See Constance A. Johnson, Indonesia: Water Law Overturned by Court, GLOBAL LEGAL MONITOR (Mar. 3, 2015).)

Author: Constance Johnson More by this author
Topic: Consumer protection More on this topic
 Water resources More on this topic
Jurisdiction: Indonesia More about this jurisdiction

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France: Germanwings Crash Being Investigated as Homicide

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(Mar 26, 2015) The March 25, 2015, crash of a Germanwings flight in the French Alps is being investigated as a potential involuntary homicide. (Crash de l'A320: Hollande, Merkel et Rajoy se recueillent sur les lieux du drame [A320 Crash: Hollande, Merkel and Rajoy Gather to Mourn on the Location of the Disaster], LE POINT (Mar. 25, 2015).) The investigation is being conducted by the French National Gendarmerie under the supervision of the office of the prosecutor of Marseilles. (Id.)

Involuntary homicide is defined in French law by article 221-6 of the French Code pénal (Penal Code) as the act of causing the death of another through "clumsiness, imprudence, distraction, negligence, or failure to follow a duty of care or prudence mandated by law or regulation." (CODE PENAL, art. 221-6, LEGIFRANCE.) Article 221-6 also includes "evidently deliberate violation of a specific duty of care or prudence mandated by law or regulation," although such deliberate violation entails a heavier potential sentence. (Id.)

The Marseilles prosecutor's office may convert the investigation for involuntary homicide into one for voluntary homicide, based on evidence that the copilot may have intentionally crashed the airplane. (Crash A320 GermanWings: seul dans le cockpit, le copilote a agi avec "la volonté de détruire cet avion" [GermanWings A320 Crash: Alone in the Cockpit, the Copilot Acted with "the will to destroy this airplane"], FRANCE SOIR (Mar. 26, 2015).) Voluntary homicide, referred to simply as murder in the French Penal Code, is defined by article 221-1 as the act of voluntarily causing the death of another (CODE PENAL, art. 221-1, LEGIFRANCE.)

Author: Nicolas Boring More by this author
Topic: Aviation and airports More on this topic
 Criminal code More on this topic
 Homicide More on this topic
Jurisdiction: France More about this jurisdiction

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France: Comedian Condemned for Hate Speech and Condoning Terrorism

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(Mar 26, 2015) The controversial French comedian Dieudonné M'Bala M'Bala, known simply as Dieudonné, has been the subject of a recent prosecution for a statement condoning terrorism and of several prosecutions involving hate speech.

These cases were principally governed by the Law of July 29, 1881, on Freedom of the Press, which is considered one of France's foundational laws in matters of freedom of speech. (Loi du 29 juillet 1881 sur la liberté de la presse, LEGIFRANCE.) This law, commonly known as the Law of 1881, was meant to both enshrine and set limits on freedom of the press and freedom of speech. It has been amended several times over the years, including in 1972, when provisions were added to prohibit hate speech, and most recently in 2014, when provisions were added to prohibit speech advocating or condoning terrorism. (Loi No. 72-546 du 1er juillet 1972 relative à la lutte contre le racism [Law No. 72-546 of July 1, 1972, Regarding the Fight Against Racism] LEGIFRANCE; Loi No. 2014-1353 du 13 novembre 2014 renforçant les dispositions relatives à la lute contre le terrorisme [Law No. 2014-1353 of November 13, 2014, Strengthening Provisions on the Fight Against Terrorism] LEGIFRANCE.)

Charge of Condoning Terrorism

On March 18, 2015, Dieudonné was found guilty of condoning terrorism by the criminal tribunal (tribunal correctionnel) of Paris. (Dieudonné Sentenced over Facebook Post on Charlie Hebdo Attack, FRANCE 24 (Mar. 18, 2015); "Charlie Coulibaly": deux mois de prison avec sursis pour Dieudonné ["Charlie Coulibaly": Two Months of Suspended Jail Time for Dieudonné], LE PARISIEN (Mar. 18, 2015].) In this case, Dieudonné was prosecuted after he posted a message saying "[k]now that tonight, as far as I am concerned, I feel like Charlie Coulibaly" on his Facebook page following a massive demonstration that occurred in the wake of terrorist attacks in and around Paris in January. ("Je me sens Charlie Coulibaly": Dieudonné visé par une enquête pour apologie du terrorisme ["I Feel Like Charlie Coulibaly": Dieudonné Investigated for Condoning Terrorism], FRANCE TV INFO (Jan. 12, 2015).) This phrase, which concludes a slightly longer statement in which he was mocking the demonstration, combined a reference to the "Je suis Charlie" ("I am Charlie") slogan that cropped up in support of the satirical magazine Charlie Hebdo, which was the target of a terrorist attack on January 7, 2015, and to Amedy Coulibaly, the name of a hostage taker who attacked a Parisian kosher supermarket two days later.

The prosecution had asked that Dieudonné be sentenced to paying 200 days' worth of €150 (about US$160) "day fines" (jours amende, a penalty where the convict must either pay the fine or do jail time), but the court instead sentenced him to two months of suspended incarceration. (Chloé Pilorget-Rezzouk, "Charlie Coulibaly": Dieudonné écope de prison avec sursis ["Charlie Coulibaly": Dieudonné Gets Suspended Jail Sentence], EUROPE1 (Mar. 18, 2015).)

Inciting Racial Hatred Charges

Two days later, Dieudonné was also found guilty of "inciting racial hatred" in another case, for which he was sentenced to pay a fine of €22,500 (about US$24,400). (Dieudonné condamné à 22,500 euros d'amende pour ses propos contre Patrick Cohen [Dieudonné Sentenced to a 22,500 Euros Fine for Remarks Against Patrick Cohen], LIBERATION (Mar. 19, 2015).) In that case, the comedian had been prosecuted for anti-Semitic remarks he made during one of his shows. Specifically, Dieudonné made a joke about Patrick Cohen, a radio host who had been critical of him and who is Jewish, involving gas chambers and the Holocaust. (Id.)

A couple of weeks prior to that, a Parisian civil court ruled that sale of DVDs of the show in which Dieudonné made these remarks would be prohibited. (Pierre-Emmanuel Mesqui, Dieudonné: la justice interdit la vente du DVD de son spectacle [Dieudonné: Court Prohibits the Sale of DVDs of His Show], LE FIGARO (Mar. 4, 2015).) The court also ruled that Dieudonné would pay €5,000 (about US$5,400) in damages to the International League Against Racism and Anti-Semitism, the advocacy group that initiated the suit to ban the DVD. (Id.) Last year, the live performance of the show depicted in the DVD was banned by local authorities in several cities around France (Dieudonné: interdiction de jouer le "Mur" à Paris aussi [Dieudonné Banned from Performing "The Wall" in Paris Too], LIBERATION (Jan. 10, 2014).) The Conseil d'Etat, France's highest court for matters of administrative law, ruled that these bans were legally justified when it upheld the Prefect of Loire-Atlantique's decision to prohibit the performance in his jurisdiction. (Conseil d'Etat, Jan. 9, 2014, No. 374508.)

Acquitted of Slander Charge

Dieudonné prevailed in another recent case, however. He was before the Paris criminal tribunal in March 2014 on charges of slander for having described Manuel Valls, then the French Minister of Interior, as a "half trisomic Mussolini" in August 2013. (Dieudonné relaxé après avoir qualifié Valls de "Mussolini moitié trisomique"[Dieudonné Acquitted After Having Described Valls as "Half Trisomic Mussolini"], FRANCE TV INFO (Mar. 24, 2015).) In a judgment of March 24, 2015, the court found that Dieudonné's words were the expression of a political opinion and therefore were not illegal under French law. (Id.)

Contrast with Charlie Hebdo

These cases may be contrasted with legal action against the satirical newspaper Charlie Hebdo, known for publishing provocative and often offensive caricatures. It appears that Charlie Hebdo was brought to court approximately 50 times between 1992 and 2014. ("Charlie Hebdo," 22 ans de procès en tous genres ["Charlie Hebdo," All Kinds of Lawsuits in 22 Years], LE MONDE (Jan. 8, 2015).) The magazine prevailed in the vast majority of cases, but was found guilty of defamation a handful of times. (Id.) While Charlie Hebdo has published caricatures of religious figures such as the Pope or Mohammed and has repeatedly been sued by various religious groups for hate speech, courts have invariably declined to find that these caricatures constituted hate speech. (Id.) This is because, while hate speech is illegal in France, blasphemy is not. Whereas mocking or criticizing a distinct people on the basis of their religious beliefs is considered hate speech, mocking or criticizing the beliefs themselves is permissible. (Damien Leloup & Samuel Laurent, "Charlie," Dieudonné…: quelles limites à la liberté d'expression? ["Charlie," Dieudonné…: What are the Limits to Freedom of Expression?], LE MONDE (Jan. 14, 2015).)

Author: Nicolas Boring More by this author
Topic: Freedom of speech More on this topic
 Freedom of the press More on this topic
 Terrorism More on this topic
Jurisdiction: France More about this jurisdiction

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Italy: Updated Legislation on International Military Cooperation

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(Mar 26, 2015) On February 20, 2015, Italy's Parliament passed new legislation, Decree-Law No. 7, regulating the involvement of the Italian Armed Forces in international cooperative activities. (Decree-Law No. 7 of February 18, 2015, Urgent Measures for the Fight Against Terrorism, Including International Terrorism (D.L. No. 7), GAZETTA UFFICIALE, No. 41 (Feb. 19, 2015), NORMATTIVA.)

The new legislation authorizes the extension of the use of Armed Forces military personnel for security activities related to the Expo Milano 2015, which is an international exhibition to be held in Milano, Italy, in October 2015, and appropriates the necessary funds for the use of such personnel. The theme of the Expo is food and nutrition. (Id. arts. 5(1)-(3).)

Decree-Law No. 7 also authorizes new appropriations to support the use of Italian military and police forces in a number of European Union international missions. The missions are in the Balkans, Bosnia-Herzogovina, Albania, Kosovo, the Mediterranean Sea (the "Active Endeavor" mission), Palestine, Georgia, Libya, and several African countries, among other countries. (Id. arts. 11-13.) The legislation provides as well for the Italian forces participation in the anti-piracy mission called Atalanta. (Id. art. 13(9)(3); European Union External Action, Countering Piracy off the Coast of Somalia (Mar. 24, 2015), EU website.)

Funds are also appropriated to support the use of Italian military and police forces in a number of United Nations missions, in Kosovo, Cyprus, Lebanon, and Mali. (D.L. arts. 11(4) & (5), 12(4), & 13(9)(5).)

There is additional funding for the Italian forces' participation in the NATO mission called Baltic Air Policing. (Id. art. 11(7).) Finally, other missions also funded are: the NATO mission in Afghanistan, the Temporary International Presence in Hebron, and the international coalition fighting the terrorist threat posed by the Islamic State in Iraq and the Levant. (Id. arts. 12(1), (5) & (9).)

Author: Dante Figueroa More by this author
Topic: Armed forces More on this topic
 Defense spending More on this topic
 International affairs More on this topic
 Military assistance More on this topic
 Militias and paramilitary groups More on this topic
 Terrorism More on this topic
Jurisdiction: Italy More about this jurisdiction

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