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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.

Turkey: Constitutional Court Censures Lower Court for Not Enforcing Constitutional Court Judgment

(Apr. 9, 2021) On January 21, 2020, the Grand Chamber of the Constitutional Court of Turkey issued its decision in the Kadri Enis Berberoglu (3) case, censuring the Istanbul 14. Criminal Court for refusing to comply with the Constitutional Court’s prior decision in Kadri Enis Berberoglu (2).

The cases arose from complaints made by Kadri Enis Berberoglu to the Constitutional Court. Under article 148/3 of the Constitution of Turkey, any person may apply to the Constitutional Court on the grounds that a constitutional right or freedom guaranteed in the European Convention on Human Rights and its protocols has been violated by public authorities. All ordinary remedies must be exhausted before applying to the court. If the court finds that an eligible right was violated, it will order the measures necessary for the violation to be remedied. (Law No. 6216, art. 50(1).) The court will order a retrial if the violation is caused by a judicial decision. (Art. 50(2).)

Background

Berberoglu is a member of Parliament elected from Istanbul in the November 2015 general elections and a member of the Republican People’s Party (CHP), the main opposition party in Turkey’s Parliament. In April 2016 the chief prosecutor of Istanbul filed a request with the Parliament to have Berberoglu’s legislative immunity suspended on charges that he had unlawfully procured and disclosed confidential state information for the purposes of political or military espionage. The criminal investigation concerned the leaking of information regarding certain alleged activities of the Turkish National Intelligence Organization in relation to the Syrian Civil War, which resulted in the publication of allegations of clandestine weapon shipments into Syrian territory. Under article 83 of the Turkish Constitution, members of Parliament cannot be subject to criminal investigations and prosecution unless Parliament decides to suspend their legislative immunity.

The chief prosecutor’s request was granted by the Parliament when a provisional constitutional amendment was made providing for a blanket suspension of the legislative immunity of MPs for which a request for suspension was pending at the time of the passage of the law. (Const. provisional art. 20.)

Following the suspension of Berberoglu’s legislative immunity, he was convicted in June 2017 in the Istanbul 14. Criminal Court of unlawfully procuring confidential state information of the state for the purposes of espionage and was put in detention and sentenced to 25 years in prison. Berberoglu appealed the conviction, and in February 2018 the Istanbul 2. Regional Court of Justice (court of second instance) reversed the conviction of the lower court, but reconvicted him of the lesser crime of unlawfully disclosing confidential state information and sentenced him to five years and 10 months in prison.

Berberoglu appealed the regional court’s decision to the Court of Cassation, and while his second appeal was pending, he was reelected as a member of Parliament from Istanbul in the June 2018 general elections. With this development, Berberoglu requested the Court of Cassation to suspend the criminal proceedings against him and release him from detention on the grounds that he had regained legislative immunity under article 83 of the Constitution by being reelected as a member of Parliament. In July 2018, the 16. Criminal Chamber of the Court of Cassation dismissed Berberoglu’s request for suspension of the criminal proceedings, finding that his legislative immunity was still waived under provisional article 20 of the Constitution. The court also dismissed Berberoglu’s request to be released, without giving any reasons. Berberoglu’s objections to the dismissals were denied in September 2018.

On September 20, 2018, following the dismissals of his requests, the 16. Criminal Chamber affirmed the regional court’s decision convicting Berberoglu and released Berberoglu from detention, sending the judgment to the Parliament. Berberoglu filed two complaints at the Constitutional Court, claiming that his constitutional right to be elected and perform political activity (art. 67) and right to personal liberty and security (art. 19) had been violated by the 16. Criminal Chamber’s refusal to suspend the criminal proceedings and release him from custody following his reelection as a member of Parliament and the concurrent revesting of his legislative immunity. Berberoglu also argued that his conviction for disclosing confidential state information that was already in the public domain was a violation of freedom of the press (arts. 26 and 28) and that the court’s refusal to let him cross-examine a witness was a violation of his right to a fair trial (art. 36). The Constitutional Court consolidated Berberoglu’s complaints in Kadri Enis Berberoglu (2).

While Berberoglu’s case was pending before the Constitutional Court, the Court of Cassation’s judgment was read in the plenary meeting of the Parliament on June 4, 2020. The judgment stripped Berberoglu of his membership according to article 84/2 of the Constitution. The following day, he was arrested and sent to a minimum-security open prison for the execution of his sentence. On the same day, Berberoglu was released from detention on temporary leave in accordance with COVID-19-related measures, although his status as inmate remained in effect on the date the Constitutional Court announced its decision in Kadri Enis Berberoglu (3).

The Grand Chamber of the Constitutional Court issued its judgment in Kadri Enis Berberoglu (2) on September 17, 2020, holding, inter alia, that the 16. Criminal Chamber’s refusal to suspend Berberoglu’s proceedings and release him upon his reelection was a violation of his right to be elected and to pursue political activity. The court remanded the case to the Istanbul 14. Criminal Court for retrial and remediation of the constitutional right violations.

The Istanbul 14. Criminal Court refused to conduct a retrial and ordered the continuation of the execution of Berberoglu’s sentence. In its decision, the court argued that Law No. 6216 on the Establishment and Procedure of the Constitutional Court did not grant the Constitutional Court the authority to review the use of discretion of ordinary courts and that the Constitutional Court had thus violated the jurisdiction of the ordinary courts by overturning the findings of the Criminal Chamber of the Court of Cassation that rejected Berberoglu’s arguments related to his reelection. Berberoglu objected to the 14. Criminal Court’s decision, and after reviewing the decision, the Istanbul 15. Criminal Court in turn upheld the 14. Criminal Court’s decision on different grounds, ruling that the Constitutional Court had erred in remanding the case to the court of first instance because Berberoglu had originally been convicted by the Istanbul Regional Court of Justice, so the case should have been remanded to that court. Neither the 14. nor the 15. Criminal Courts, however, forwarded the case to the regional court for the execution of the Constitutional Court’s judgment. Following the 15. Criminal Court’s ruling, Berberoglu lodged a third constitutional complaint with the Constitutional Court on October 26, 2020, claiming that the criminal courts’ refusal to enforce the Constitutional Court’s judgment in Kadri Enis Berberoglu (2) constituted a violation of his right to be elected and pursue political activity, and his right to personal liberty and security.

Holding of the Constitutional Court

The Grand Chamber of the Constitutional Court observed that article 153 of the Constitution provided that the decisions of the Constitutional Court were binding on all courts and state organs and that lower courts could not, on any grounds, dispute its judgments or refuse to execute them. (Kadri Enis Berberoglu (3) § 114.)  The court remarked that a first degree court’s questioning the decision of the Constitutional Court and refusing to execute it constituted a gross and blatant violation of the rule of law and the principle of legal security. (§ 132.) Furthermore, the court found that the authority of the Constitutional Court included both the determination of the remedy for the violation of rights and the determination of the authority that is required to realize the remedy, reversing the Istanbul 15. Criminal Court’s decision that the judgment could not be executed because the case had been remanded to the wrong court. (§ 115.) The court found that while it had the power to determine the authority that is responsible for executing its orders, courts were free to make requests or delegations to other judicial bodies so long as they were necessary to execute the order of the Constitutional Court. (§ 115.)

The court stated that the provision in article 2 of the Constitution declaring the country to be a state of law (hukuk devleti, i.e., Rechtsstaat, état de droit) was “not merely rhetorical” and that the refusal of a state organ to enforce the judgments of the Constitutional Court for whatever reasons constituted “a gross violation of the rule of law and the constitutional order based thereupon.” (§ 141.)

The court concluded by remarking that

[i]n no legal system may arbitrary decisions be allowed to stand that cause the violation of the fundamental rights and freedoms of individuals through various pretexts or illicit attitudes and conduct and offend the legal order established by the Constitution in a way that would perpetuate the violations of rights. Thus, it is self-evident that the violation of constitutional norms in a state of law will give rise to criminal, administrative, and civil repercussions for the individuals responsible. (§ 142.)

The court ordered the Istanbul 14. Criminal Court to (i) start the retrial process, (ii) stop the execution of Berberoglu’s sentence, (iii) cancel his conviction, and (iv) issue a suspension in the retrial process. (§ 140.) The court thus remanded the case to the trial court, but particularly, also ordered that a copy of the judgment be sent to the Parliament and to the Council of Judges and Prosecutors, which is a body that supervises the career progressions and disciplinary issues of all judges and prosecutors in the country, because “the enforcement of the judgment is not only the duty of the relevant trial courts but also that of the [Parliament] and the Council of Judges and Prosecutors.” (§ 145.)

Aftermath of the Judgment

Berberoglu regained his status as a member of Parliament after the judgment of the Constitutional Court was read in the plenary meeting of the Parliament on February 11, 2021. The president of the Parliament, Mustafa Sentop, remarked in a press statement that the part of the Constitutional Court’s judgment calling on the Parliament to enforce the decision was an improper “political statement” and that the court had acted beyond its powers with its admonition. Reportedly, the Presidency of the Parliament responded to the Constitutional Court by letter, requesting that the judgment “be clarified and the material error be rectified.” The Istanbul 14. Criminal Court started its retrial procedure and sent a request to the Parliament to suspend Berberoglu’s legislative immunity in relation to the retrial. Berberoglu’s objection to the request was denied by the court. The Parliament has not yet made a decision on the request.

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United Kingdom: Bill Introduces New Agency for Cutting-Edge Scientific Research

(Apr. 8, 2021) On March 2, 2021, the government of the United Kingdom (UK) introduced the Advanced Research and Invention Agency Bill. The bill provides for the establishment of an independent agency known as the Advanced Research and Invention Agency (ARIA) and sets out the legislative framework that details how the agency should be governed. In addition, the bill enumerates the functions of the agency, which are to conduct scientific research; develop and exploit scientific knowledge; and collect, share, publish, and advance scientific knowledge.

The aim of the bill is to enable the development of cutting-edge science and technology while minimizing bureaucracy to enable ARIA to “invest in ambitious research at unprecedented speeds.” The government intends that ARIA would “empower some of the world’s most exceptional scientists and researchers to identify and fund transformational areas of research to turn incredible ideas into new technologies, discoveries, products and services – helping to maintain the UK’s position as a global science superpower.”

Clause 2 of the bill provides that ARIA could perform these functions itself, or commission or support others to do so. When supporting others in these functions, ARIA could act to encourage or facilitate the work of others, as well as provide advice or make rights or property available to others, such as by loaning property, providing a license or gift, or transferring property through other means.

ARIA could also provide financial support through grants, loans, and investments in companies, or through any other form, such as seed grants or prize incentives. This financial support could be subject to conditions, such as repayment, the restoration of property, or the provision of information to ARIA.

ARIA would be initially provided with 800 million pounds (approximately US$1.1 billion) of funding. The funding arrangements for ARIA would provide it with

flexibility outside the standard government contracting and granting standards. The ARIA Bill will provide the agency with exemption from the existing Public Contract Regulations, enabling ARIA to procure vital services and equipment with maximum flexibility so that it can carry out ground-breaking research at speeds rivalling a private investment firm.

Clause 3 of the bill explicitly provides ARIA with the ability to exercise its functions, even in cases that carry a high risk of failure, if it believes that significant benefits can be achieved or facilitated through the research. The government stated that “[t]his flexibility is necessary to enable the agency to develop technologies at speed that could create profound positive change for the UK and the rest of the world, recognising that failure is an essential part of scientific discovery.”

While there is no geographic restraint on the location on where ARIA could support others or conduct its own research, the bill provides that it

must have regard to the desirability of doing so for the benefit of the United Kingdom, through—

(a) contributing to economic growth, or an economic benefit, in the United Kingdom,

(b) promoting scientific innovation and invention in the United Kingdom, or

(c) improving the quality of life in the United Kingdom (or in the United Kingdom and elsewhere).

The government has also stated that it intends to exempt ARIA from information requests under the Freedom of Information Act, which would serve “to reduce the administrative time required to process FOI requests and protect Britain’s competitive advantage, while allowing the agency to run an extremely lean and agile operating mode – which is essential to its design and ultimate success.”

To help balance the streamlining of bureaucracy with adequate oversight, clause 14 of the bill provides that ARIA would be required to submit an annual report of its functions along with a statement of its accounts to Parliament, and that it would also be subject to review by the National Audit Office. Clause 5 of the bill gives the secretary of state the powers to intervene if it is “necessary or expedient” to do so in the interests of national security. Examples provided by the government include requiring ARIA to stop collaborating with hostile actors, or closing specific programs.

ARIA is modeled on the United States’ Advanced Research Projects Agency (ARPA), and if the bill successfully progresses through Parliament and is enacted, the government intends for ARIA to be operational in 2022.

Clause 8 of the bill provides the secretary of state with the power to introduce regulations to dissolve ARIA, but includes limits on this power, requiring a period of 10 years to pass from the creation of ARIA before such regulations can be made. The reason for the restriction “is to provide ARIA with the necessary long-term security.” If ARIA is dissolved, the regulations may specify that any property, rights, or liabilities of ARIA can be transferred to the secretary of state or any other person.

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Sweden: Supreme Court Rules Naming and Threatening Police Officer in Rap Song to Be Freedom of Expression and Not a Crime

(Apr. 7, 2021) On March 31, 2021, the Supreme Court of Sweden issued a judgment finding that song lyrics that named a female police officer and included threatening language did not constitute the crime of threatening a police officer (hot mot tjänsteman), but was protected under the constitutional right to freedom of expression. (Supreme Court, Case No. B 6101-9; English summary.)

Background

The Swedish rap artist Frej Larsson produced two songs titled “Då ska hon skjutas” (“Then she should be shot”—a well-known phrase that is part of a famous Swedish birthday song) and “Att göra en [AL]” (“To do an [AL]”—“AL” being the police officer’s initials as used in the court decision). The lyrics of the two songs named a female police officer who had previously arrested several persons at one of Larsson’s concerts. In addition to the birthday-song phrase “and then she should be shot,” the lyrics of one of the songs call AL a dirty fish and say that all fishes shall be made to suffer. The songs were made available on the music app Spotify during a three-day period and were played 24,000 and 14,000 times, respectively. (Case at ¶¶ 1–5.)

The national prosecutor brought charges against Larsson for the crime of threatening a person in her official capacity (hot mot tjänsteman), criminalized in the Criminal Code. (17 kap. 1 § Brottsbalken (SFS 1962:700).) Larsson was acquitted by the local district court, which stated that the defendant lacked the requisite intent to threaten the police officer. That decision was appealed to Svea Appellate Court, which found Larsson guilty of threatening a police officer.

Supreme Court Case

Larsson filed a petition with the Supreme Court to hear an appeal, which the court granted.

The Swedish Constitution protects free speech and allows only a few, very specific limitations on free speech, including threats of violence. (2 kap. 23 § Regeringsformen (SFS 1974:152).)

The court noted that, in balancing artistic freedom of expression and the protection of public officials, “lyrics and music that are performed in a cultural setting must in a democratic and pluralistic society be allowed to be provocative, challenging and inquisitorial.” (Case at ¶ 21.) The court specifically noted that Larsson’s rap music is “a provocative and transgressive music genre” and that therefore “certain words are used in a manner that can hardly be taken literally and that these can have different meanings.” Thus, the artistic expression could not be deemed a threat to the police officer, even if it “surely was perceived as unpleasant for her.” (Case at 28, 34, translation by author.)

Two judges dissented, arguing that although any restriction on freedom of expression must be very limited, the language in the lyrics was clearly intended to be understood as a threat of physical violence against AL and directly related to acts she had previously performed in her role as a police officer. (Case, Dissenting Opinion.)

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Sweden: Privacy Protection Authority Finds Police Use of Facial Recognition Illegal, Issues Fines

(Apr. 6, 2021) On February 10, 2021, the Swedish Authority for Privacy Protection (IMY, Integrationsmyndigheten, formerly Datainspektionen) issued a decision whereby it fined the Swedish Police Authority 2.5 million Swedish kronor (about US$296,000) for violating the Crime Data Act (Brottsdatalagen) by using the facial recognition application Clearview AI.

The artificial intelligence application was used intermittently from the fall of 2019 until March 3, 2020, by employees at the Swedish Police to locate victims and perpetrators of crimes, including child sex crimes, by using facial recognition.

The IMY found that this novel use of artificial intelligence in data processing violated several provisions in the Crime Data Act. (Crime Data Act 2 ch. 12 §; 3 ch. 2 §; 3 ch. 7 § 1 para.) The act specifically states that “[b]iometric information and genetic information may be processed only if they are specifically used for and absolutely necessary for the purpose of processing them.” (2 ch. 12 §.) The authority must also “through necessary technical and organizational measures ensure, and be able to prove, that the processing of the personal information is legal and that the registered person’s rights are protected.” (3 ch. 2 §.)

The use of new technology to process personal data is subject to additional safeguard requirements. According to the Crime Data Act, changes in how personal data is treated, including the use of new types of processes, require that the data processor investigate the consequences of the use on the protection of personal information. Moreover, if there are increased risks of infringement of the registered person’s protected rights, the authority using the information must first consult the IMY before the new process may be adopted. The IMY found that the legality of the use of the Clearview AI had not been sufficiently addressed by the Police Authority before the application was used and that the IMY had not been consulted as required. In its decision, the IMY further argued that the use of artificial intelligence in this case was unlikely to meet the requirement of necessity as required under law. (3 ch. 7 §.)

In addition to sanctioning the Police Authority with a monetary fine, the IMY also required the authority to educate its employees, by September 15, 2021, on how personal data may be processed and to provide the IMY with proof that the authority has a system for treating personal data that complies with current law. The Police Authority must also inform persons whose data have been provided to Clearview AI and ensure that Clearview AI deletes any information acquired from the Swedish Police stored on the app.

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Finland: Municipality Elections Postponed Because of COVID-19 Pandemic

(Apr. 5, 2021) On March 26, 2021, the Finnish Parliament voted to approve a two-month postponement of the country’s municipal elections because of the COVID-19 pandemic. The elections, originally scheduled for April 18, 2021, will now be held on June 13, 2021. In accordance with the decision, early voting was also rescheduled for May 26 to June 8, 2021, for voters voting in Finland and for June 2 to June 5, 2021, for voters voting abroad.

In accordance with the Finnish Election Act (Vallag (FFS 714/1998)), municipal elections must take place on the third Sunday of April every four years. There is no specific law that specifies that an election may be postponed or under what circumstances such postponements may be adopted, but the Election Act can be amended through legislation or deviated from through a separate piece of legislation, as in this case. The Finnish parliamentary Constitutional Law Committee, however, cautioned in GruB 4/2021 that postponements must be used only when there are compelling reasons (tvingande skäl) to do so, and considered the Finnish government and Finnish president’s declaration of a state of emergency due to the COVID-19 pandemic to be a compelling reason.

The Finnish government and president had announced on March 6, 2021, that they would propose postponing the elections, citing fears of spreading the coronavirus. In determining the duration of the postponement, the government also considered the Finnish Institute for Health and Welfare’s evaluation that most at-risk groups will have been vaccinated against COVID-19 by June. After reviewing the proposal, the Finnish Constitutional Committee favored the postponement, and Parliament voted to voted to approve the proposal, incorporating minor changes by the Constitutional Committee. As a result, the terms of sitting municipal representatives will automatically be extended until July 31, 2021. Representatives who resign at the expiration of their original mandate on June 1, 2021, will be succeeded by an alternate for the remainder of the term. The term of incoming municipal representatives elected in 2021 will not be extended past the original mandate, which expires on May 31, 2025.

The next elections for the national Parliament, scheduled for April 2, 2023, are not affected by the changes to the municipal elections.

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