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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: Supreme Court Holds Threat of Suicide Not a Criminal Offense

(Feb. 15, 2018) On January 17, 2018, Israel’s Supreme Court unanimously overturned the conviction of an appellant who had threatened to take her own life and been charged with committing a criminal threat under § 192 of the Penal Law, 5737-1977. The Court opinion was issued by Justice Dafna Barak-Erez, with Justices Uzi Vogelman and Hanan Melcer concurring. (CrimA 8736/15 Tsobari Bar v. State of Israel (Jan. 17, 2018), State of Israel: The Judicial Authority website (in Hebrew); Penal Law, 5737-1977 § 192, SEFER HAHUKIM [BOOK OF LAWS, official gazette] 5737, No. 864 p. 226, as amended.)

Background

The appellant, a woman of limited means who lives on a disability pension, was sued by her neighbor for harming his property by leaving bags of clothing at the entrance to their apartment building. Missing the deadline for responding to the lawsuit, the small claims court judge ruled against the appellant and ordered her to pay the plaintiff 30,000 Israeli Shekels (IS) (about US$9,000) in compensation. Liens were consequently levied against the appellant’s property. (CrimA 8736/15 ¶ 4; Revital Hovel, Supreme Court: Threat of Suicide Is Not a Crime, Don’t Want to Deter from Expressing Feeling of Distress, HAARETZ (Jan. 18, 2018) (in Hebrew).)

The appellant then sent a letter to the judge who had convicted her, stating that as a last resort she chose to commit suicide and hoped that her suicide would haunt the judge for the rest of her life. The letter was intercepted by the court security system, and the appellant was charged and convicted of committing a threat. She was sentenced to one month probation and a fine in the amount of IS1,000 (about US$300) to be implemented if she committed a similar offense within the following twelve months. The appellant’s subsequent appeal before the district court was rejected. (CrimA 8736/15 ¶¶ 4–9.)

The Offense of Committing a Threat

The Penal Law provides that

[a] person who in any manner, with intent to intimidate or annoy another, threatens him with unlawful injury to his body, freedom, property, reputation or livelihood or that of a third person is liable to imprisonment for three years. (Penal Law, 5737-1977 § 192 (translation by author).)

Supreme Court Determinations

According to Justice Barak-Erez the element of unlawfulness that is required to establish the offense of threat under § 192 of the Penal Law, 5737-1977 relates to the infliction of an “injury” that will materialize if the person threatened does not comply with the threat. In this case the question that should be asked is whether a threat to commit suicide constitutes unlawful harm to the human body and is therefore prohibited. (Id. ¶¶ 27–28.)

Barak-Erez determined that because in 1966 the Israeli law criminalizing suicide had been repealed, threatening suicide cannot constitute a basis for conviction under § 192, which prohibits one from threatening “unlawful injury” to the body of “another person” who is being threatened. (Id. ¶ 44.)

Recognizing that a threat to commit suicide may serve as a means of emotional manipulation and vindictiveness, Barak-Erez stated that it may also reflect a situation of crisis and even a call for help. (Id. ¶ 53.) The expression of suicidal thoughts may lead to the provision of treatment to prevent the suicide threat from being carried out. (Id. ¶ 55.) In Barak-Erez’s opinion,

[r]estraining freedom of expression by criminal law in situations of distress where suicidal thoughts arise in a person may therefore lead to a chilling effect on expressing feelings of distress and despair—before family members and friends or before treating professionals and welfare authorities. (Id. ¶ 57.)

The Court’s determination that the offense of threat in its current form was not intended to apply to threats of suicide, Barak-Erez held, does not affect the possibility of enacting a specific offense that would apply to such threats. Such legislation may in her view adopt different approaches to different situations, such as those involving suicide threats in spousal relationships as a means of harassment or exerting pressure, repetitive threats, or threats directed at a person who knows the threatening person and is therefore emotionally affected by that person. (Id. ¶ 59.)

Conclusions

Justice Barak-Erez decided that there was no reason to convict the appellant of attempting to threaten the judge as the appellant’s letter to the judge never reached her. (Id. ¶ 60.)

Judge Barak-Erez condemned the appellant’s sending of the letter as inappropriate behavior but did not consider it as constituting an offense. The appellant was therefore declared innocent of the offense of threat for which she had been convicted, and all penalties against her based on the conviction were to be vacated. (Id. ¶¶ 68–69.)

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Saudi Arabia: Twin Brothers Charged with Islamic Crime of Hiraba

(Feb. 9, 2018) On January 16, 2018, the Criminal Court of Riyadh began the trial of twin brothers accused of killing their 67-year old mother; attempting to kill their 73-year-old father and twenty-two year old brother; and accusing the rulers, police, and Muslim scholars of apostasy. (Saudi Arabia: Twins on Trial in Al-Hamra District Case in Riyadh, ASSAKINA (Jan. 16, 2018) (in Arabic); Sami Aboudi, Killing of Mother in Saudi Arabic Sparks Debate About Islamic Scholar, REUTERS (July 5, 2016).) The brothers, who were twenty years old when they committed their crimes, were arrested on June 24, 2016, by Saudi security forces while they were trying to flee across the border to Yemen. (Saudi Arabia: Twins on Trial in Al-Hamra District Case in Riyadh, supra; Killing of Mother in Saudi Arabic Sparks Debate About Islamic Scholar, supra.) The prosecution has called for the brothers to be sentenced to death. (Saudi Prosecution Tries Twin Brothers Who Beheaded Their Mother, ASHARQ AL-AWSAT (Jan. 17, 2018) (in English).)

The public prosecutor is seeking to convict both defendants of the crime of hiraba, as described in verse 33 of Surat al-Maida of the Holy Koran. (Saudi Arabia: Twins on Trial in Al-Hamra District Case in Riyadh, supra.) Verse 33 of Surat al-Maida reads as follows:

It is but a just recompense for those who make war on God and His apostle, and endeavour to spread corruption on earth, that they are being slain in great numbers, or crucified in great numbers, or have, in result of their perverseness, their hands and feet cut off in great numbers, or are being [entirely] banished from [the face of] the earth: such is their ignominy in this world. But in the life to come [yet more] awesome suffering awaits them. (The Message of the Quran, translated and explained by Muhammad Asad, Arthur’s Classic Novels website (last visited Feb. 7, 2018).)

The crime of hiraba or qat‘ al-sabil (brigandage, highway robbery) is one of a handful of crimes known in Islamic law as hudud—that is, crimes whose punishment is prescribed by God. (Mohammad H. Fadel, Hiraba, or Brigandage, WORLD HISTORY (June 13, 2015).) Saudi Arabia is probably the only country that enforces the classical uncodified Islamic law of crimes. (Caryle Murphy, Saudi to Codify Sharia “for Clarity, NATIONAL (July 21, 2010).)

Some media reports have stated that the twin brothers committed their crimes on the basis of instructions they received from the terrorist organization known as Daesh (ISIS) and that the mother had objected to her sons joining Islamic State jihadists in Syria. (“Specialized Criminal Court” Begins Trial of Twin Brothers Who Killed Their Mother, OKAZ (Dec. 31, 2017) (in Arabic); Killing of Mother in Saudi Arabic Sparks Debate About Islamic Scholar, supra.)

Despite the fact that in court “the first defendant commented that he and his twin brother had not intended to commit the crime” and “denied having any association with terrorist organizations,” the General Secretariat of the Council of Senior Scholars, Saudi Arabia’s highest religious body, attributes the brothers’ crimes to the takfiri (extremist) ideology spreading in society and blames ISIS for relentlessly working “to hold the nation’s youth as hostage to its extremist thought.” (Saudi Prosecution Tries Twin Brothers Who Beheaded Their Mother, supra.) Saudi clerics have warned that the goal of ISIS is to put youth on “a path paved with violence, death, murder and terrorism and away from the teachings of Prophet Mohammed.” (Id.)

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Costa Rica/OAS: Inter-American Court of Human Rights Declares Right to Marry Should Be Extended to Same-Sex Couples

(Feb. 9, 2018) On January 9, 2018, the Inter-American Court of Human Rights (IACtHR) published an advisory opinion stating that under the American Convention of Human Rights, the institution of marriage should be extended to same-sex couples. (Press Release, IACtHR, Advisory Opinion on Gender Identity and Nondiscrimination Against Same-Sex Couples (Jan. 9, 2018), IACtHR website (in Spanish); IACtHR, Advisory Opinion OC-24/17 of November 24, 2017, IACtHR website (in Spanish); American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, United Nations Treaty Collection website.)

Article 64 of the Convention provides that any Member State of the Organization of American States (OAS) may request an advisory opinion from the IACtHR regarding the protection of human rights and the compatibility of its domestic laws with the Convention.

Costa Rica requested an advisory opinion on May 18, 2016, regarding whether parties to the Convention must recognize name-change and identity information of persons according to their preferred gender identity. They also asked for an opinion on whether parties must recognize economic rights derived from a relationship between people of the same sex. (IACtHR Press Release, supra.)

The IACtHR ruled that several rights under the Convention, including article 18 (right to a name), article 3 (right to legal personality), article 7.1 (right to personal liberty), and article 11 (right to privacy), encompass the right to change one’s name and have one’s personal identity information reflect the gender one prefers. (Advisory Opinion OC-24/17 of November 24, 2017, supra, para. 118.) The Court ruled that parties to the Convention are obligated to establish appropriate procedures under articles 1.1 and 24 to respect and guarantee rights without discrimination and under article 2 to adopt domestic law to the rights provided for under the Convention. (Id.)

The Court further ruled that article 11.2 (protection of private and family life) and article 17 (right to protection of the family) and other internationally recognized human rights protect the right of persons of the same sex to form a family bond, and that articles 1.1 and 24 require that this right be guaranteed without discrimination. (Id. para. 199.)

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China: New Talent Visa Rules Published

(Feb. 9, 2018) On January 9, 2018, the State Administration of Foreign Experts Affairs (SAFEA) of the People’s Republic of China (PRC or China) published the rules on the issuance of the talent visa, a new type of visa designed to attract more foreign talent to the country. The Implementation Measures Regarding the Foreign Talent Visa System (Talent Visa Measures) provide that, effective November 28, 2017, qualified foreign talents may obtain the talent visa (R visa), which is valid for five to ten years with multiple entries. The Measures were jointly issued by the SAFEA, the Ministry of Foreign Affairs (MFA), and the Ministry of Public Security (MPS) on the date the Measures went into effect. (Waiguo Rencai Qianzheng Zhidu Shishi Banfa [Implementation Measures Regarding the Foreign Talent Visa System] (Nov. 28, 2017), SAFEA website.)

  1. Legal Provisions

The issuance of the talent visa was addressed by Chinese law as early as 2012 when the PRC Exit and Entry Law was adopted. The Law provides that, effective July 1, 2013, “talent introduction” would be considered one of the reasons for the issuance of an ordinary visa. (Zhonghua Renmin Gongheguo Chujing Rujing Guanli Fa [PRC Law on the Administration of Exit and Entry] (adopted by the Standing Committee of the National People’s Congress on June 30, 2012, effective July 1, 2013) (Exit and Entry Law) art. 16, The Central People’s Government website.)

Authorized by the Exit and Entry Law, the State Council promulgated a regulation governing visa issuance and foreigners’ stays in China—the Regulation on the Administration of the Entry and Exit of Aliens—which went into effect on September 1, 2013. The Regulation specifies that an R visa will be issued to top foreign talents and specialized talents urgently needed by China. (Laney Zhang, China: New Visa Rules Passed, GLOBAL LEGAL MONITOR (Aug. 26, 2013).) Detailed rules concerning the issuance of this new type of visa, however, were not published until now, with the Talent Visa Measures clarifying such issues as R-visa application procedures, eligibility, and validation.

  1. Top Foreign Talents

On March 28, 2017, the SAFEA, MFA, MPS, and Ministry of Human Resources and Social Security jointly issued the Standards for the Classification of Foreigners Coming to Work in China (Trial) (Standards), which classified foreigners intending to work in China in three categories: Category A, top foreign talents; Category B, professional personnel; and Category C, other foreigners, including nontechnical workers or service workers hired on a temporary or seasonal basis, and foreign interns and students. (Waiguoren Laihua Gongzuo Fenlei Biaozhun (Shixing) [Standards for the Classification of Foreigners Coming to Work in China (Trial)] (Mar. 28, 2017, effective Apr. 1, 2017), SAFEA website.) According to the Talent Visa Measures, only top foreign talents—Category A under the Standards—are eligible to apply for an R visa. (Measures art. 4.)

Category A includes a wide range of foreign talents, such as Nobel Prize winners, professors or associate professors from renowned overseas universities, high-level officials of foreign governments, international organizations or NGOs, successful artists, sports coaches and players, senior managers at Fortune 500 companies, and postdoctoral students under 40 years of age. Anyone who is selected by a national or local government talent program or scores over 85 in the newly designed point system is also considered a top foreign talent. (Id.)

  1. Advantages of the Talent Visa

Talent visas may be valid for five to ten years with multiple entries. Spouses and minor children of the holder may obtain corresponding types of visas with the same entries and periods of validity. (Measures art. 7.) Talent- visa applicants may receive their visas as quickly as two days after applying and are not required to pay any application or expediting fee. (Id. arts 8 & 9.) Talent visa holders still need to apply for a work permit in order to work in China; the application, however, may be completed online, and the authority makes the decision within three work days. (Id. art. 10.)

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Saudi Arabia: Riyadh High Court Waives Requirement for Women to Fully Cover Their Faces in Courthouse

(Feb. 8, 2018) For the first time in its history, the High Court of Riyadh is no longer requiring women to fully cover their faces when they visit the Riyadh courthouse. (Fatimah Al-Dabees, Riyadh Court Waives Condition of Covering the Face and Is Satisfied with Hijab, OKAZ (Dec. 25, 2017) (in Arabic).)

The Chief Justice of the High Court of Riyadh had in the past reportedly issued instructions obligating all women attending court hearings, including female lawyers and clients, to cover their faces when they were in front of a judge. However, on December 25, 2017, he decided to waive this condition and issued new instructions allowing women to wear only a hijab (head covering) while attending court hearings. (Id.)

The change in policy had been precipitated by an incident a few days earlier in which a judge at Riyadh’s courthouse encountered a female lawyer filing reports there who was not wearing a niqab (veil covering the head and face, except for the eyes) and had her removed from the building. (Mariam Nabbout, A Saudi Lawyer Got Kicked Out of Court for Not Wearing Niqab, STEPFEED (Dec. 21, 2017).) Sheikh Abdul Rahman Al-Qassem, assistant deputy minister of Saudi Arabia’s authority for Judicial Affairs, responded to the incident by claiming that the female lawyer didn’t have the correct ID to enter the building and, accordingly, had to be escorted out by security personnel. He also added that the incident was still under investigation. (Id.)

The female lawyer decided to file a formal complaint against the judge’s action to the chief justice of the Court and the Supreme Judicial Council. She accused the judge of abusing his power in that his reaction was based on personal religious opinions. (Khalid Ali, Al-Lahem Submitting Official Complaint to Chief Justice and Supreme Council of Judiciary, SABQ (Dec. 21, 2017) (in Arabic).)

Dr. Eqbal Darandari, a female Saudi legal professor, has endorsed the decision of the chief justice to lift the requirement of wearing the niqab  inside the courthouse. Dr. Darandari, who is also a member of the Saudi Shura Council (a legislative body that advises the king on important issues) thought the decision would be well received because “it helps the court to provide women with all needed services … [and] women to feel more comfortable frequenting courthouses” because they are able to dress as they regularly do. (Aseel Bashraheel, General Court in Riyadh Retracts Ban on Unveiled Women, ARAB NEWS (Dec. 27, 2107); About Saudi Arabia: Majlis Al-Shura (Consultative Council), ROYAL EMBASSY OF SAUDI ARABIA, WASHINGTON, DC (last visited Feb. 6, 2018).) According to Dr. Darandari, while the requirements for dressing in modest attire in courts of law, which are governed by religious sanctions, must be respected, that should not mean imposing the views of a specific Islamic sect on all women “as there have always been differing opinions and sects when it comes to hijab.” (General Court in Riyadh Retracts Ban on Unveiled Women, supra.)

Saudi human rights lawyer Abdulrahman Al-Lahim has endorsed the concept of not forcing women to cover their faces, stating that, because there is no law in Saudi Arabia obligating women to cover their faces, no one in authority can compel them to do so.” (Abdulrahman Al-Lahim, No One Can Force a Woman to Cover Her Face, SAUDI GAZETTE (Dec. 26, 2017).) Commenting on the removal of the female lawyer from the courthouse, Al-Lahim declared that “no judge or anyone in a high position should be allowed to make their own laws and force citizens to follow them. There are religious institutions in the Kingdom that specialize in forming laws on such issues. This is not the remit of a judge.” (Id.)

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