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Iran: Cabinet Abandons Directive on Scrapping Old Cars to Reduce Air Pollution

(Dec. 5, 2017) Pressure from Iran’s automakers and the country’s Ministry of Industry, Mines and Trade has led to the cancellation by the Council of Ministers (Cabinet) of a recently adopted directive aimed at combating the high levels of air pollution in Iran’s big cities, 80% of which comes from automotive sources. (Ameer Hossein Askarian, Traffic Police Criticize Government Council’s Cancellation of Decree on Scrapping Cars, MOQAVEMATI NEWS (Oct. 24, 2017) (in Persian); Suspending the Licensing of Gas-Guzzling Cars; Perhaps Some Other Time, ISNA (Oct. 11, 2017) (in Persian).) The directive, which was announced on August 15 and entered into force on September 17, 2017, required local automotive companies to scrap one old, gas-guzzling car for every car they produced whose fuel consumption was over 8.5 liters per 100 kilometers or pay a fine of 25 million rials (about US$625). (Suspending the Licensing of Gas-Guzzling Cars, supra; Laws to Curb Pollution Gone with the Wind, FINANCIAL TRIBUNE (Oct. 26, 2017).)

With the cancellation of the directive, gas-guzzling and polluting cars will continue to be produced in the country without any special restrictions, and the issuing of special license plates for such cars, which had ceased with the publication of the directive, resumed. (Reversal of Auto Emission Rules in the Country, ASR-E KHODRO (Oct. 23, 2017) (in Persian); Laws to Curb Pollution Gone with the Wind, supra.)

Environmental and Financial Effects of the Directive’s Cancellation

While the cancellation of the directive was welcomed by the auto industry, it was sharply denounced by environmentalists and other experts. (Laws to Curb Pollution Gone with the Wind, supra.)  Expressing his dismay, Colonel Sa‘eed Rouhi, the technical and engineering deputy of Iran’s traffic police, stated that “cancelling the decree on scrapping old cars alongside of producing cars with high fuel consumption is a mistake” because “removing old cars from the transportation system is the principal approach for reducing air pollution in the big cities.”  (Traffic Police Criticize Government Council’s Cancellation of Decree on Scrapping Cars, supra; Laws to Curb Pollution Gone with the Wind, supra.)  Rouhi maintained that the directive would have been effective had it been enforced, citing studies indicating that the rate of fuel consumption and, consequently, air pollution could have been reduced by 10%.  (Traffic Police Criticize Government Council’s Cancellation of Decree on Scrapping Cars, supra.)

In addition, the extremely short time between the announcement of the directive and its implementation (about a month) reportedly led to financial losses for citizens who had bought domestic cars with high fuel consumption before the directive was passed but suddenly had to sell them on learning that special licenses for their cars would no longer be issued – only to have the directive cancelled a few weeks after it went into effect. (Suspending the Licensing of Gas-Guzzling Cars, supra.)

Future Government Measures Planned

Iran’s air pollution problem does not stem entirely from the prevalence of old gas guzzlers on its city streets. The engines used in most new cars produced by the two main semi-state-owned companies, Iran Khodro and SAIPA, are “notorious for high emissions, poor mileage, and flaunting safety rules, especially the low-priced sedans,” and would be below standard in countries with strict environmental regulations.  (No Cherry-Picking, All Low-Quality Cars Have to Go, FINANCIAL TRIBUNE (Oct. 22, 2017).) Accordingly, Nayereh Pirouzbakht, head of the Iran National Standards Organization (INSO), has stated that “production lines of all low-quality cars will be halted by 2019” and production permits for any vehicle failing to meet the INSO benchmarks will be revoked.  (Id.)

Environment activists, economic experts, and NGOs, however, have registered “complaints and protestations” about what they claim is the government’s reported failure to implement tougher regulations announced in recent years to improve domestic car quality and get high emission vehicles off the roads and its “inability or unwillingness to use the full force of the law” against Iran Khodro and SAIPA for refusing “to [comply with] minimum environmental standards and curb production of low-quality vehicles.” (Id.)

Topic: Air quality, Consumer protection, Environmental technology, Executive agencies, Licensing and permits, Manufacturing, Motor vehicles, Oil and gas

Jurisdiction: Iran

Author: Barry Lerner

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New Zealand: Paid Parental Leave to Be Extended to 26 Weeks by 2020

(Dec. 5, 2017) On November 30, 2017, the New Zealand Parliament voted to pass legislation that will see the current paid parental leave entitlement of 18 weeks extended in two stages: to 22 weeks from July 1, 2018, and then to 26 weeks from July 1, 2020.  (Parental Leave and Employment Protection Amendment Bill, PARLIAMENT OF NEW ZEALAND (last visited Nov. 30, 2017); Parental Leave and Employment Protection Amendment Bill (text of the bill), NEW ZEALAND LEGISLATION; Press Release, Iain Lees-Galloway, Bill to Extend Paid Parental Leave to 26 Weeks Passes, BEEHIVE.GOVT.NZ (Nov. 30, 2017).)

Background and Rationale

The Parental Leave and Employment Protection Amendment Bill 2017 was among the first pieces of legislation proposed by the new Labour Party-led government, which was sworn in on October 26, 2017.  The Bill was introduced on November 8.  (Press Release, Iain Lees-Galloway, Government Moves to Extend Paid Parental Leave to 26 Weeks with Urgency, BEEHIVE.GOVT.NZ (Nov. 8, 2017).)  Previously, a bill to extend paid parental leave to 26 weeks, which was introduced by a Labour Party member of Parliament in 2015, was discharged by a financial veto of the National Party-led government at its third reading (the final parliamentary stage for a bill) in June 2016.  (Parental Leave and Employment Protection (6 Months’ Paid Leave) Amendment Bill, PARLIAMENT OF NEW ZEALAND (last visited Dec. 4, 2017).)  At the time, the then-Finance Minister Bill English stated, “Treasury estimates the cost of this legislation amounts to $278 million over the next four years, a significant extra – unbudgeted – cost.  That’s on top of the $251 million a year (net of tax) taxpayers are expected to spend by 2020 under the existing paid parental leave framework.”  (Jo Moir, Government Has Used the Financial Veto to Stop an Extension to Paid Parental Leave, STUFF.CO.NZ (June 16, 2016).)

Extending paid parental leave subsequently became part of the policy platforms of the two major political parties during the September 2017 election campaign, with the National Party stating that it would extend the leave entitlement to 22 weeks, while the Labour Party committed to 26 weeks.  (Press Release, Paula Bennett, Michael Woodhouse & Jonathan Coleman, National Supports Young Families: Our Parents and Newborn Package Includes Extending Paid Parental Leave to 22 Weeks, Supporting Families to Grow and Stay Healthy, NATIONAL.ORG.NZ (Aug. 29, 2017); Press Release, Sue Maroney, Labour Committed to 26 Weeks Paid Parental Leave, LABOUR.ORG.NZ (Aug. 29, 2017).)

Upon introducing the amendment bill, Minister of Workplace Relations and Safety Iain Lees-Galloway stated:

As well as the direct financial benefits to households and reducing stress on parents, extending paid parental leave has a range of positive impacts on child development and fostering parent-infant attachment.

It also aligns with the World Health Organisation recommendation of exclusive breastfeeding up to six-months of age, all of which improves short-term and long-term child and society outcomes. (Government Moves to Extend Paid Parental Leave to 26 Weeks with Urgency, supra.)

After the bill passed, the Minister further stated:

Extending the duration of payments is vital for supporting working families with newborns and young children and for New Zealand to catch up with the best international practice.

New Zealand’s current paid parental leave entitlement of 18 weeks is one of the lowest in the OECD [Organisation for Economic Co-operation and Development], with the average number of weeks of paid leave to mothers among OECD countries being 48 weeks. (Bill to Extend Paid Parental Leave to 26 Weeks Passes, supra.)

Previously, the duration of paid parental leave (originally called “maternity leave”) was extended to 18 weeks from 16 weeks on April 1, 2016, and prior to that, from 14 weeks on April 1, 2015.  (Parental Leave and Employment Protection Amendment Act 2014, NEW ZEALAND LEGISLATION.)  Amendments to the legislation were also made in 2016 to extend parental leave payments to “non-standard” workers, such as those in casual or seasonal employment and employees with more than one employer, as well as to those who have recently changed jobs.  (Parental Leave and Employment Protection Amendment Act 2016, NEW ZEALAND LEGISLATION; Parental Leave Law Changes 2016, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)

Parental Leave System in New Zealand

Different types of parental leave are available under the Parental Leave and Employment Protection Act 1987 (PLEP Act) and Parental Leave and Employment Protection Regulations 2016 (NEW ZEALAND LEGISLATON).  The legislation provides for paid “primary carer leave,” unpaid “partner leave,” and extended unpaid leave that is available to both primary carers and their partners.  (Types of Parental Leave, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)  

Paid parental leave in New Zealand is funded from general taxation revenue.  (PLEP Act s 71Q.)  The payments are administered by the Inland Revenue Department (IRD).  (Types of Parental Leave, supra.)  A primary carer may receive weekly parental leave payments equal to the greater of an applicant’s ordinary weekly pay, or his or her average weekly income, for the duration of the paid leave entitlement period.  However, payments are capped at a maximum weekly amount of NZ$538.55 before tax (about US$368.55).  (PLEP Act ss 71D & 71M; Paid Parental Leave, IRD (last updated June 29, 2017); Amount of Parental Leave Payment, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).) This amount is adjusted each year to reflect increases in the average wage.  (PLEP Act s 71N.)

The primary carer of a child is entitled to one continuous period of leave (currently 18 weeks).  Up to six weeks of the leave entitlement may be taken before the expected date of birth or adoption. (Id. ss 9 & 11.)  The person must have worked for the same employer for an average of at least ten hours a week during the six months before the baby’s due date or the date on which the carer becomes responsible on a permanent basis for the care of a child aged under six years.  (Id. ss 2BA & 9.)  If a person has more than one job, each employment is treated separately.  (Id. s 2A; see generally Parental Leave Eligibility – Who Can Take It, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)

A primary carer is eligible for parental leave payments from the government if he or she has been employed for at least an average of ten hours a week for any 26 of the 52 weeks immediately preceding the expected delivery date or adoption.  (PLEP Act s 2BA(4).)  Self-employed primary carers are entitled to the payments on the basis of similar work criteria.  (Id. ss 2BA(4) & 71CB.  See generally Who Can Get Parental Leave Payments, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017); Parental Leave and Payment Eligibility Table, EMPLOYMENT NEW ZEALAND (last visited Dec. 4, 2017).)

The primary carer’s spouse or partner who has worked for the same employer for an average of at least ten hours per week in the 12 months preceding the due date or adoption date is entitled to two weeks of unpaid partner leave (previously called “paternity leave”).  If the duration of employment is six months, the entitlement is for one week of unpaid leave.  (PLEP Act s 19.)  A person who is entitled to paid primary carer leave can transfer all or part of his or her entitlement to an eligible spouse or partner.  (Id. s 71E.)

If a primary carer has been employed for at least 12 months with the same employer, he or she can take up to 52 weeks of total leave, with the period after the end of the paid leave period being unpaid leave.  If the primary carer has been employed for six months before the birth or adoption, the total amount of the paid and unpaid leave entitlement is 26 weeks.  (Id. ss 23 & 26.)  This “extended leave” can be shared with the person’s spouse or partner, either consecutively or concurrently, provided that they also meet the employment criteria.  (Id. ss 28 & 29.)  Unless the employee is in a “key position,” there is a presumption that his or her job should be kept open if he or she takes extended leave.  In determining whether an employee’s position is a “key position” an employer can have regard to matters such as the size of the employer’s enterprise and the training period or skills required for the job.  (Id. s 41.)

Pregnant women are entitled to ten hours of special paid leave for reasons associated with pregnancy.  This leave does not affect the employee’s other leave entitlements.  (Id. s 15.)

The same entitlements apply with respect to each subsequent child, provided that the primary carer works for at least six months before commencing a new period of leave.  He or she can receive payments if six months have elapsed since the end of their previous paid leave period.  (Id. ss 6 & 71F.)

Cost of Extending Paid Leave Duration

In the 2015-2016 fiscal year, IRD made NZ$217 million (about US$148.5 million) in payments to 26,300 parents.  (IRD, Budget 2017 Four-Year Plan – Covering Vote Revenue 10 (Nov. 2016).)  According to figures provided by the Ministry of Business, Innovation and Employment (MBIE), the extension of parental leave payments in the 2017 amendment bill will have a total net fiscal cost of approximately NZ$325 million (about US$422.4 million) over four years.  (MBIE, Extending Paid Parental Leave to 26 Weeks – Questions and Answers (last visited Dec. 4, 2017).)  Funding for the costs associated with extending the duration of paid parental leave will be provided in Budget 2018.  (Parental Leave and Parental Responsibility Bill – Explanatory Note, NEW ZEALAND LEGISLATION.)

The two-step increase mandated by the 2017 bill allows the government to stay within the parameters of the Budget Responsibility Rules that the Labour Party and Green Party agreed to prior to the election.  (Bill to Extend Paid Parental Leave to 26 Weeks Passes, supra; Labour Party & Green Party, Budget Responsibility Rules, Green Party website (last visited Dec. 4, 2017).)

Topic: Child health, Children, Family, Workers safety and health

Jurisdiction: New Zealand

Author: Kelly Buchanan

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Japan: Supreme Court Reverses View on Whether Obscene Intent Necessary for Crime of Forcible Indecency

(Dec. 5, 2017) On November 29, 2017, the Supreme Court of Japan reversed a nearly five-decade-old precedent, stating that no obscene intent is necessary for the crime of forcible indecency.  (Saiko Saibansho [Sup. Ct.] Nov. 29, 2017, Case No. 2016 (a) 1731, Courts in Japan website (in Japanese) (click on the two characters beside PDF icon to view).)

The Precedent and the Relevant Law

In 1970, the Supreme Court ruled that to convict a person of the crime of forcible indecency, intent to sexually excite oneself or satisfy one’s sexual desire was required.  The case concerned a male who was accused of threatening for two hours to pour sulfuric acid over the face of a female victim in the presence of his de facto wife at their home because he was angry at her, and forcing her to disrobe and stand naked for five minutes while he took photos of her to embarrass and insult her.  (Sup. Ct. Jan. 29, 1970, Case No. 1968 (a) 95, Courts in Japan website (in Japanese) (click on the two characters beside the PDF icon).)  The Sapporo High Court had convicted the accused without recognizing intent on his part to sexually excite himself or satisfy his sexual desire, stating the crime of forcible indecency can be admitted as long as the victim’s sexual freedom was violated.  The Supreme Court remanded the case to the High Court to determine if the accused had had such an intent and, if not, to determine if he might be guilty of some other crime.  (Id.)

The text of the provision on forcible indecency does not explicitly require such an intent.  Article 176 of the Penal Code states:

A person who, through assault or intimidation, forcibly commits an indecent act upon a male or female of not less than thirteen years of age shall be punished by imprisonment with work for not less than 6 months but not more than 10 years. The same shall apply to a person who commits an indecent act upon a male or female under thirteen years of age.  (Penal Code, Act No. 45 of 1907, as amended by Act No. 54 of 2007, art. 176, Japanese Law Translation website.)  Act No. 72 of 2017 amended article 176.  The phrase, “a male or female” was replaced with “another person.”  (House of Representatives website (in Japanese).)

The Recent Supreme Court Decision

In the 2017 case, the Supreme Court approved the lower courts’ decisions, which stated that requiring obscene intent for the crime of forcible indecency is not appropriate and, therefore, the 1970 precedent should be reversed.  In this case, a convict forced a girl under the age of 13 to perform sexual acts on him and groped her.  The convict claimed he had committed these acts for a financial purpose, without obscene intent.  (Sup. Ct. 2016 (a) 1731.)  According to a news report, he committed the acts because the person from whom he had tried to borrow money made providing such child-sexual-abuse photos a condition of the loan.  (Changed Precedent, “Sexual Intent Not Required,” Supreme Court Decided, MAINICHI (Nov. 29, 2017) (in Japanese).)

The Court explained that the change of precedent corresponds to the change in how society perceives sexual offenses, which has led to amendments to the Penal Code in recent years (Act No. 156 of 2004 & Act No. 72 of 2017) to make punishments for sex-crime offenders harsher.  (See Sayuri Umeda, Japan: Sex Crime Law to Be Amended, GLOBAL LEGAL MONITOR (Mar. 16, 2017).)  In the situation in question, the interpretation of article 176 must focus on the damage to the victim, not the intent of the offender, the Court stated.  (Sup. Ct. 2016 (a) 1731.)

Criminal law professor Makoto Ida was reported as stating that the 1970 decision had been heavily criticized, and there had been no court decision since that had acquitted an accused because of lack of sexual intent.  Therefore, the Supreme Court’s decision will not have any noticeable effect on forcible indecency cases.  (Changed Precedent, “Sexual Intent Not Required,” Supreme Court Decided, supra.)

Topic: Crime victims, Crimes against women, Criminal code, Judicial review and appeals, Judiciary, Sex offenses, Supreme court

Jurisdiction: Japan

Author: Sayuri Umeda

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Netherlands: Human Rights Institute Rules Police Administrative Staffer Can Wear Hijab with Uniform

(Dec. 1, 2017) On November 20, 2017, the Netherlands Institute for Human Rights (College voor de rechten van de mens), an independent supervisory body established in 2002 that took over the tasks of the Dutch Equal Rights Commission, issued a non-binding ruling to the effect that the Dutch police were wrong to prohibit a Muslim woman officer from wearing a headscarf in a job in which contact with the public is limited. (Police Admin Worker Can Wear Hijab with a Uniform, Says Human Rights Council, DUTCHNEWS (Nov. 20, 2017); Headscarf Ban for On-Duty Police Is Discrimination: Dutch Human Rights Council, DAILY SABAH (Nov. 21, 2017); What Does the Institute Do?, Netherlands Institute for Human Rights website (last visited Nov. 28, 2017).) The Institute’s rulings are not binding, however, and a police comment on the finding has not yet been issued. (Police Admin Worker Can Wear Hijab with a Uniform, Says Human Rights Council, supra.)

Background

Sarah Izat, the officer concerned, was permitted to wear a headscarf while carrying out administrative duties, but had to remove it during interactions with the public, such as when taking live declarations via a three-dimensional television picture, known as 3D declarations. (Janene Pieters, Police Ban on Headscarf with Uniform Is Discrimination: Human Rights Council, NETHERLANDS TIMES (Nov. 20, 2017).) At present, police officers are prohibited from wearing wear religious attire such as headscarves or crucifixes and other religious or political symbols with the police uniform on the grounds that such accoutrements “could harm the impartiality of the police” (id.) and that officers should present “a neutral and uniform appearance,” and the ban was aimed at the safety of the officers. (Police Admin Worker Can Wear Hijab with a Uniform, Says Human Rights Council, supra.)

At police stations with a 3D counter, the declarant can scan a passport or driving license, and the officer immediately knows who is in the room, and due to the 3D image, it is as if the officer is on the other side of the desk from the declarant; the officer then records the declaration in the usual way. (Aangifte via 3D televisiebeeld in Lansingerland [Declaration via 3D television image in Lansingerland] (Feb. 13, 2013), National Police website.)

The issue of whether or not police officers should be permitted to wear headscarves has been under discussion “for some time.” (Police Admin Worker Can Wear Hijab with a Uniform, Says Human Rights Council, supra.) In May 2017, the Amsterdam police had proposed allowing it “to promote diversity in the corps and attract more police officers with an immigration background,” but because it proved to be too controversial, National Police Chief Erik Akerboom decided to maintain the ban. (Id.; Janene Pieters, Headscarf Ban Prevents Amsterdam Police from Recruiting Minorities: Top Cop, NL TIMES (May 18, 2017); Janene Pieters, Top Cop: No Headscarves with Dutch Police Uniforms, NL TIMES (May 26, 2017).)

The Ruling

The Institute held that, in Izat’s case, the police made a “forbidden distinction on the basis of religion.” (Pieters, supra; Judgments: The National Police Discriminates Against a Police Officer by Forbidding Her to Perform Her Duties (Answering the 0900 Service Number and Recording 3D Declarations) in Police Uniform Combined with a Headscarf, Judgment No. 2017-135 (Nov. 20, 2017), Netherlands Institute for Human Rights website (in Dutch).) The council also stated that in her case “the need for a neutral appearance is limited, given the nature of the administrative job” she carries out. (Police Admin Worker Can Wear Hijab with a Uniform, Says Human Rights Council, supra.)

The ruling applies only to Izat’s case, without offering a broader interpretation of the prohibition on display of religious symbols such as the wearing of headscarves. (Headscarf Ban for On-Duty Police Is Discrimination: Dutch Human Rights Council, supra.) Article 1 of the Dutch Constitution states, “[a]ll persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted.” (The Constitution of the Kingdom of the Netherlands 2008, Government of the Netherlands website (click on pdf icon to view text); Grondwet [Constitution] (Aug. 24, 1815, as last amended Nov. 17, 2017), OVERHEID.NL.)

While Izat’s attorney said “[w]e would have liked it if the Commission had made its decision a bit broader,” she expressed her and her client’s satisfaction with it. (Headscarf Ban for On-Duty Police Is Discrimination: Dutch Human Rights Council, supra.)

Topic: Attire, Discrimination, Religious minorities

Jurisdiction: Netherlands

Author: Wendy Zeldin

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Germany: Costs of Phone Calls in Prisons Must Reflect Market Prices

(Dec. 1, 2017) In a decision published on November 28, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) found that the constitutional requirement of social rehabilitation of sentenced persons is violated when a prisoner is charged excessive fees for phone services. An inmate’s request for a reduction of the costs for a prison phone call to the costs of calls charged by regular commercial providers had been denied by the prison administration, which had simply pointed out that it had an existing, exclusive, long-term contract with a private telecommunications provider the terms of which applied to prisoner calls. (BVerfG, Docket no. 2 BvR 2221/16, Nov. 8, 2017, BVerfG website (in German); Basic Law for the Federal Republic of Germany (May 23, 1949), BGBl. I at 1, as amended, art. 2 ¶ 1 in conjunction with art. 1 ¶ 1, GERMAN LAWS ONLINE (unofficial English translation).)

Facts of the Case

The complainant in the case has been an inmate in a prison in the German state of Schleswig-Holstein since 2014. The prison’s inmate phone system is run by a private telecommunications provider on the basis of an exclusive, 15-year contract with the state of Schleswig-Holstein. No alternative phone services exist for the inmates. In 2015, the telecommunications provider changed its fee schedule, which resulted in significantly higher phone costs for the complainant. (Docket no. 2 BvR 2221/16, at 2 & 3.)

In July 2015, the complainant submitted a request based on the Prison Act to the prison administration to adjust the costs of phone calls made in the prison to match the costs of phone calls outside of a prison, in order to safeguard his financial interests. The prison administration denied his request. (Id. at 4; Gesetz über den Vollzug der Freiheitsstrafe und der freiheitsentziehenden Maßregeln der Besserung und Sicherung (Strafvollzugsgesetz – StVollzG) [Act Concerning the Execution of Prison Sentences and Measures of Rehabilitation and Prevention Involving Deprivation of Liberty (Prison Act)], Mar. 16, 1976, Bundesgesetzblatt [BGBl.] [Federal Law Gazette] I at 581, 2088; I S. 436, as amended, § 3 ¶ 1, GERMAN LAWS ONLINE (translation updated through Apr. 25, 2013).)

The inmate’s lawsuit against the decision of the prison administration and the subsequent appeal were rejected. The prison administration submitted that it was not able to terminate the contract with the private telecommunications provider prematurely and that it would instead issue a re-tender for the contract upon its expiry in 2021. The appeals court therefore decided not to address the issue of whether the fees charged were excessive. (Docket no. 2 BvR 2221/16, at 6-10.)

Decision

The Federal Constitutional Court reiterated that prisons have a duty of care to safeguard the financial interests of their inmates and that disregarding this fact violates the social rehabilitation requirement of the German Basic Law, the country’s constitution. (Id. at 19.) It held that even though prisons are not obligated to eliminate fees for phone calls completely, they are required to approximate the living conditions in a penal institution as far as possible to the general living conditions outside  prison. (Id. at 20; Prison Act, § 3 ¶ 1.) In the Court’s opinion, it is therefore not compatible with this principle to charge excessive fees to inmates for services that are far cheaper on the regular market. It stated that charging excessive fees is also a violation of the constitutional principle of proportionality, which requires the state to minimize as much as possible the negative repercussions that  execution of the punishment might have on the prisoner. (Docket no. 2 BvR 2221/16, at 20.)

The Court stated that the prison cannot escape its obligations towards its prisoners by outsourcing services to third parties. If the prison decides to contract with a third party whose services the prisoners are forced to use, it has to ensure that the private company provides the services at regular market prices. Whether or not there is an existing contract is irrelevant for the question of whether the prices charged are market rate, in the Court’s opinion. (Id. at 21 & 22.)

The Court concluded that the appeals court violated the complainant’s financial interests and, by extension, his constitutional right to social rehabilitation, by not addressing the question of whether the fees charged were excessive. It held that an existing long-term contract should not prevent the prison from charging the market rate for phone services or from offering alternative phone services. (Id. at 23.) The Federal Constitutional Court set aside the judgment and remanded the case to the appeals court. (Id. at 25.)

Topic: Communications, Constitutional law, Prisoners' rights

Jurisdiction: Germany

Author: Jenny Gesley

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