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Jamaica: Challenge to Law on Homosexuality

(Dec. 14, 2015) On December 10, 2015, Jamaican human rights activist Maurice Tomlinson filed a complaint with the country’s Supreme Court of Judicature against some provisions of the Offences Against the Person Act that outlaw sexual conduct between two consenting men.  (Ashley Hogan, Jamaica Rights Activist Challenges Homosexuality Ban, PAPER CHASE (Dec. 10, 2015); The Offences Against the Person Act (1864, as amended), Jamaica’s Child Development Agency website.)  Tomlinson stated “[t]he law is a gross violation of my human rights and those of all LGBTI people in my country,” and added that in addition to infringing on those rights, the Act fuels violence against homosexuals in Jamaica.  (Press Release, Canadian HIV/AIDS Legal Network, Jamaican Gay Activist Launches Constitutional Challenge (Dec. 9, 2015).)  He also noted that “criminalization and marginalization of consensual sex drives gay men and other men who have sex with men underground, away from desperately needed HIV prevention, treatment and testing services.” (Id.)

Legal Provisions Challenged

The sections of the Act that Tomlinson is challenging include provisions against “the abominable crime of buggery, committed either with mankind or with any animal,” which is punished on conviction with imprisonment and hard labor for up to ten years (The Offences Against the Person Act, § 76).  Attempts to commit that crime or indecent assault on a male are considered misdemeanors that can be punished with imprisonment for up to seven years, with or without hard labor (id.).  The complaint calls into question one additional section of the Act, which states that any male committing “any act of gross indecency with another male” is guilty of a misdemeanor to be punished, at the discretion of the court, with up to two years in prison; that term may include hard labor (id. § 79).

Tomlinson’s complaint also cites a 2011 act and 2012 regulations that together create a system of registration of sexual offenders, requiring them to carry a pass and to notify authorities of any change of address.  (The Sexual Offences Act (June 30, 2011), Ministry of Justice website; The Sexual Offences (Registration of Sex Offenders) Regulations, 2012 (Oct. 3, 2012), Parliament website.)  Failure to comply with the requirements connected to the registry carries a penalty of 12 months of imprisonment, a J$1 million (about US$8,300) fine, or both.  (The Sexual Offences Act, § 35.)

Tomlinson argues that the legal norms in question violate provisions of Jamaica’s Charter of Fundamental Rights and Freedoms on the right to liberty and freedom of the person, privacy, and nondiscrimination.  (The Charter of Fundamental Rights and Freedoms Act (Constitutional Amendment Act) 2011, § 2 (amending Ch. III of the Constitution), Parliament website; The Jamaica (Constitution) Order in Council 1962 (last updated July 9, 2011), CONSTITUTION FINDER.)

Previous Case

Tomlinson, who is an attorney and works for the Canadian HIV/AIDS Legal Network, represented another activist in a similar case in June 2013.  The plaintiff in that case, Javed Jaghai, eventually withdrew his complaint due to safety concerns, as violence against homosexuals was increasing in Jamaica at the time.  (Emine Saner, Gay Rights Around the World: The Best and Worst Countries for Equality, GUARDIAN (July 30, 2013); Jamaican Gay Rights Activist Challenges Law Against Sex Between Men, GUARDIAN (Dec. 9, 2015).)

Topic: Crime and law enforcement, LGBT rights, Sex offenses

Jurisdiction: Jamaica

Author: Constance Johnson

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Court of Justice of the European Union; European Union: Challenges to Mandatory Plan to Relocate Refugees

(Dec. 14, 2015) Several of the European Union (EU) Members States, including the Czech Republic, Hungary, Romania, and Slovakia have been very critical of the EU’s recently adopted plan to distribute 120,000 refugees among all the EU Member States.  On September 9, 2015, the European Commission had adopted a proposal for the resettlement plan in order to assist Italy and Greece in dealing with a tremendous influx of refugees from Syria, Iraq, Afghanistan, and other conflict-torn areas.  Poland, which was also initially critical of the plan, eventually endorsed it.  Romania voted against it, but has not taken any further action.  (Council Decision (EU) 2015/1523 of 14 September 2015 Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and of Greece, 2015 O.J. (L 239) 146, EUR-LEX.)

Slovakia and Hungary, citing various concerns and indicating a clear preference for Christian, over Muslim, refugees from Syria, decided to resort to court proceedings against the EU plan.  On December 2, 2015, Slovakia initiated legal action before the Court of Justice of the European Union (CJEU).  (Slovakia v Council, Case C-643/15, CURIA (last visited Dec. 9, 2015).)  The Prime Minister of Slovakia, Robert Fico, said he wanted the CJEU to declare the EU’s mandatory quota invalid, characterizing the plan as “nonsensical and technically impossible.”  (Slovakia Files Lawsuit Against EU’s Refugee Relocation, POLITICO (Dec. 2, 2105).)

On December 4, Hungary filed a similar lawsuit.  (Hungary v Council,  Case C-647/15, CURIA (last visited Dec. 9, 2015).)  Victor Orbán, the Prime Minister of Hungary, is of the opinion that migrants are a public threat, given the recent terrorist attacks in France.  (William Helbling, Hungary Challenges EU Refugee Distribution, PAPER CHASE (Dec. 4, 2015).)

At present Curia, the CJEU’s website, does not have further information on these recent cases.

Background on the Relocation Plan

The EU’s mandatory relocation plan is of temporary duration, lasting until September 2017, and will apply to refugees arriving in the territory of Italy or Greece from September 16, 2015, until September 17, 2017, and to those applicants who had arrived in those Member States after August 15, 2015.  (Council Decision (EU) 2015/1523, supra.)

The decision provides that 66,000 persons will be relocated from Italy and Greece (15,600 from Italy and 50,400 from Greece).  The remaining 54,000 persons will be relocated from Italy and Greece in the same proportions one year after the entry into force of the decision.  The relocation would be carried out pursuant to a mandatory distribution scheme based on the following formula: 40% on the size of the receiving jurisdiction’s population, 40% on its GDP, 10% on its past acceptance of asylum applications, and 10% on its unemployment rate.  Two EU Members, Denmark and the United Kingdom, are not participating in this decision; Ireland has expressed its intention to participate.  (Council Decision (EU) 2015/1523, supra; see also Theresa Papademetriou, European Union: Adoption of Decision to Relocate Asylum Seekers, GLOBAL LEGAL MONITOR (Sept. 25, 2015).)

Topic: Immigration, Refugees

Jurisdiction: Court of Justice of the European Union, European Union

Author: Theresa Papademetriou

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Vietnam: Heavier Fines for Illegal E-Commerce Activities

(Dec. 14, 2015) A new decree issued by Vietnam’s government on November 19, 2015, amends several articles of a 2013 decree that imposes penalties for administrative violations in connection with commercial activities, the manufacture of and trading in counterfeit or banned goods, and the protection of consumers’ interests.  The new decree punishes various acts that violate e-commerce practices and also provides for the imposition of fines for cigarette smuggling, improper use of business licenses, and business operation violations.  It is scheduled to enter into force on January 5, 2016.  (New Regulation Sets Heavier Fines Against E-Commerce Swindlers, VIETNAM LAW & LEGAL FORUM (Dec. 5, 2015); Decree No. 124/2015/ND-CP, Socialist Republic of Vietnam Government Portal website (in Vietnamese) (click on “124.signed.pdf”); Vietnam Decree No.: 185/2013/ND-CP on Providing the Penalties on Administrative Violations in Commercial Activities, Production of, Trading in Counterfeit or Banned Goods and Protection of Consumer Rights (Nov. 15, 2013), VIETNAM LAW IN ENGLISH.)

Violations in Connection with E-Commerce

The amending decree provides that enterprises that establish mobile applications for the sale of goods online or provision of e-commerce services must notify or register with the Ministry of Industry and Trade; otherwise they will be subject to payment of a heavy fine.  Most of the sanctions prescribed for the mobile sales app violations are similar to the punishments currently prescribed for e-commerce website violations.  “Specifically, a fine of VND 1-5 million [about US$44-$222] will be imposed on enterprises failing to make proper notification and registration dossiers, disclose their information in a proper manner, or protect customers’ personal information in e-commerce.”  (New Regulation Sets Heavier Fines Against E-Commerce Swindlers, supra.)

Enterprises that fail to provide information to state authorities or to assist those authorities in investigating illegal business activities carried out on e-commerce websites or e-commerce service apps or that fail to take steps to remedy their illegal business conduct after such conduct is detected or reported will face a fine of VND50 million (about US$2,223).  The same penalty applies to enterprises that set up online business and marketing networks for participants who contribute money to buy services and to receive commissions or monetary rewards.  (Id.)  A similar fine, of VND40-50 million, applies to businesses “that take advantage of assessment, supervision and certification in e-commerce to make illicit profits, or deliberately continue their business operation after having their registrations terminated or their licenses for assessment, supervision and certification in e-commerce revoked”; they will also have their licenses revoked.  (Id.)

Cigarette Trade Violations

The new decree doubles penalties for activities related to illicit trade in tobacco.  Reportedly, the  trade in smuggled cigarettes constitutes 20% of the Vietnamese cigarette sales market, with 85% of the illicit goods being Jet and Hero brands, which are said to “contain chemical substances at unusually high levels, especially Coumarin, one of [the] main substances in rat poison.”  (Khanh Tran, Vietnam Doubles Penalty for Illicit Tobacco Trade, VIETNAM INVESTMENT REVIEW (Dec. 1, 2015).)  Most Jet and Hero cigarettes, said to be made in Indonesia, are smuggled into the country from Cambodia.  (Vietnam Says Popular Smuggled Cigarettes Are Toxic, THANH NIEN NEWS (Sept. 18, 2014).)

The decree prescribes that anyone found to have conducted trade in illicit cigarettes will face a fine of VND500,000 to 1 million (about US$22-$44) when the violation involves less than ten packs of illicit cigarettes.  The fine will be VND1 to 2 million ($44-$89) for trade in 10-20 packs and up to VND50 to 70 million (about US$2,223-$3,112) for 400-500 packs.  (Tran, supra.)

If more than 500 packs are traded, the activity will be considered for criminal prosecution; if the prosecutorial authority decides against a criminal prosecution, the offenders will be subject to a fine of VND70 million-VND100 million (about US$3,112-$4,446).  (Id.; see also in general Law on Prevention and Control of Tobacco Harms, Law No.  09/2012/QH13, Vietnam Steering Committee on Smoking and Health website.)

Topic: Administrative remedies, Commerce, Internet, Tobacco and smoking

Jurisdiction: Vietnam

Author: Wendy Zeldin

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Taiwan: Proposed Amendment to School Health Act Would Ban Use of GM Foods

(Dec. 10, 2015) It was reported on December 1, 2015, that the Legislative Yuan (the primary parliamentary body of the Republic of China (on Taiwan)) is currently reviewing an amendment to Taiwan’s School Health Act that would ban genetically modified (GM) ingredients and processed foods containing them from educational institutions throughout the country.  (GM Food Ban in Schools Passes First Legislative Review, TAIWAN TODAY (Dec. 1, 2015); School Health Act (Feb. 6, 2002, as last amended Dec. 18, 2013), Ministry of Education website (toggle to view Chinese text).)  The substances to be targeted include “generic GM soybeans and derivatives such as bean curd, soy milk and tofu.”  (GM Food Ban in Schools Passes First Legislative Review, supra.)

The draft amendment also specifies that:

  • all restaurants in Taiwan, as of December 31, 2015, must introduce labels or notices indicating to patrons whether they use genetically altered or engineered food ingredients, a rule that, “coupled with the establishment of a nationwide registry system for foods served on campuses, is expected to help boost preparations to turn local schools into GM food-free environments” (id.);
  • competent authorities must conduct annual reviews on campuses of food hygiene and safety, in order to maintain “the highest standards for food handling, preparation and serving in schools” (id.); and
  • food service committees, comprising school staff members and parent representatives, should be established in all primary and secondary level educational institutions “to further advance health and nutrition among Taiwan students.” (Id.)

Minister of Education Wu Se-hwa, commenting on the proposed revision of the Act, indicated that his Ministry and the Ministry of Health and Welfare would join together in planning ahead to meet the new requirements, if the amendment is adopted.  He stated, “[w]hile encouraging the use of locally grown farm produce approved by the government, the MOE has advised schools to be prudent in choosing GM foods for school lunches.  We believe the bill would further the ministry’s efforts to safeguard students’ health and bolster our campaign for better food education.”  (Id.)

The amendment has passed the first reading in the Legislative Yuan but must pass two more readings in order to become law.  (Id.)

Topic: Food labeling, Food safety, Genetically modified foods, Health, School administration

Jurisdiction: Taiwan

Author: Wendy Zeldin

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Russia: Supreme Court Ruling on Sports Contracts

(Dec. 9, 2015) On November 24, 2015, the Supreme Court of the Russian Federation issued a ruling on resolving labor disputes involving athletes and sports team coaches. (Supreme Court of the Russian Federation, Ruling No. 52 on the Application by Courts of Laws Regulating the Work of Sportsmen and Coaches (Nov. 24, 2015), Supreme Court of the Russian Federation website (in Russian).) The ruling establishes standards for labor contracts concluded between teams, coaches, and players (id. § 5) and states that these contracts may include requirements established by athletic associations in addition to regular labor law provisions (id. § 2).

According to the ruling, athletes and coaches can be hired for a period of no longer than five years (id. § 7), and their employers are required to provide them with guarantees of participation in sporting events and competitions (id. § 8). If an employer cannot provide an athlete with opportunities to participate in sports competitions, he must find an opportunity to transfer that athlete to another team for a period of up to one year, so that the athlete will be able to compete. (Id. § 16.)

Athletes who become sick or injured will continue to receive the same benefits as if they were performing normally. (Id. § 21.) Team owners are allowed to invite foreign athletes and coaches to join their teams, but the owners must personally accept the associated risks, because they will not be able to terminate contracts with the foreigners early if the recruits do not demonstrate the expected results. Thus, contracts with foreign athletes are subject to the same rules as those signed with Russian sportsmen and cannot be changed because of the underperformance of the invited athlete. (Id. § 12.)

Athletes are required to take measures aimed at improving their performance. Engaging in behavior that does not lead to improved results, such as missing practices, smoking, or drinking, even during vacation time, refusal to undergo medical evaluations, or gaining weight, can be a reason for early termination of a contract. (Id. § 14.) Doping is now a mandated reason for excluding an athlete from a team, and it is a job requirement for a coach to make sure that members of a team he or she coaches do not take prohibited stimulants. Doping abuse by athletes can be a reason for firing a coach, and an athlete’s avoiding a doping test will be considered an attempt to falsify test results. (Id. § 24.)

Additionally, the Supreme Court addressed training methods used by coaches. It said that any single incidence of physical or mental abuse will constitute a sufficient reason to initiate adverse actions against a coach. (Id. § 26.)

The ruling is to be used as guidance by all lower courts when they resolve cases related to professional sports. Existing labor contracts with athletes and coaches must be amended to reflect the issues addressed by the Supreme Court ruling. (Id. § 1.)

Commentators have stated that the ruling is an important step in bringing transparency to professional sports in Russia and is intended to make sure that all athletes follow their contractual obligations. (Vladislav Kulikov, Do Not Toast the Records, ROSSIISKAIA GAZETA (Nov. 24, 2015) (in Russian).)

Topic: Judiciary, Labor, Labor-management relations, Sports and recreation

Jurisdiction: Russia

Author: Peter Roudik

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