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ALGERIA MOVING TOWARDS INVESTING IN RENEWABLE ENERGIES – A STUDY FROM ALEGAL AND ECONOMIC PERSPECTIVE
Get PDFOver the past few years, Algeria has mainly focused on investing in renewable energies. For the purpose of promoting and encouraging this type of investment, the Algerian authorities decreed a set of legal and regulatory texts in order to efficiently regulate the investment process in renewable energies. They also opened the door to new partners in the private sector and provided all the necessary incentives and motivators for that.The present study aims to peruse the legal and regulatory framework that Algeria has seriously promoted in view of encouraging investment in the field of renewable energies. The results of that study were then assessed by addressing the investment strategies and models that were applied in some Wilayas (Provinces) in the southern region of the country.
Keywords: Renewable energies; Economical development; Investment; Jurisdiction; Environment
Introduction
It is widely acknowledged that the energy sector is a strategic domain that plays a significant developmental role in every country. In addition, achieving economic and social development is predominantly linked to the availability of appropriate energy sources. It is also noteworthy that the consumption of energy has significantly increased due to various developments in all fields[1].
It is worth emphasising that energy in general, and renewable energies in particular,represent a promising alternative to conventional energies. They indeed constitute the principal engine of economic growth formost countries and major companies; they also represent an absolute priority for sustainable development[2].
Furthermore, in view of the depletion of conventional fossil energies, Algeria has sought to encourage investment in renewable energies that are not harmful to the environment. This was undertaken especially because its economy has known some hesitation in recent years due to the impact of high internationalprices on the main energy source, i.e. oil, which is considered the source of national income for Algeria[3].
For this, the country decided togive up its reference function in monopolising economic activities. Then, the features of the new state were clarified by opening national markets to competition and by providing new channels for the intervention of private operators in vital activities of strategic importance that were for a long time the monopoly of the state.
It is also important to note that the Algerian state has also made it one of its main priorities to preserve natural capital and alleviate the impacts of the energy system on the environment and its dire consequences[4].
Moreover, in order to perpetuate this strategy, the state had to enact legal textsto frame this plan of action.
The problem of this study lies in knowing and developing the legal and institutional mechanisms that were established by the legislator in order to frame the investment in renewable energies and promote them within the framework of sustainable development. It also tries to discuss the outcomes of this investigation.
In addition, this paperis intended to identify the legal and institutional mechanisms that control and regulate the investment requirements in renewable energies while addressing one of the economic models that have been established since the issuance of the legal arsenal that regulates this action program.
This study was essentially based on descriptive and analytical approaches in order to describe the concepts and analyse the legal texts in this respect.
First: Legal mechanisms to promote investment in renewable energies
As a result of the drop in oil prices, which adversely impacted the country\u27s hard currency income, Algeria decided to bet on establishing and developing a national industry for renewable energies and making this industry a prominent source for achieving sustainable development. It also tried to define legal and regulatory frameworks to encourage national or foreign investment in this domain. At the same, the government insisted on protecting the environment from pollution that has been partly degraded due to the use of fossil energies.
It is important to mention that the first step to do so consisted of completing an agreement with Belgium on April 08, 1982, for the development of renewable energies. Algeria ratified this agreement in 1983 under Decree 131-83[5].
Likewise, Algeriastarted enactingother legal texts, starting with Law No. 98-11,which includes the guiding law and the five-year program on scientific research and technological development[6]. This was the first law that actually reflected the legislator\u27s vision of interest in renewable energies.
Afterwards, this first law was followed by Decree 99-09, which is related to energy control,[7]and by Ordinance 02-01, which concerns electricity and gas distribution through channels[8]. This is viewed as the first legislative framework dealing with the marketing of electric energy generated from renewable sourcesand with the promotion of using renewable energy. It also allowed the private sector to exploit this type of energy. This ordinance also permitted the self-production of renewable energies.
Algeria has also adopted supportive policies in conducting competitive bidding processes in order to develop major renewable energy projects for the private sector. This would guarantee the purchase of energy produced from renewable resources.
Similarly, Law 04-09, which was issued in 2004, was quite special as it was related to the promotion of renewable energies within the framework of sustainable development[9].
Then, the legislator stipulated within the core of Article 04 that the items given below enter within the framework of renewable energies:
All kinds of electrical, thermal, or gas energies that are obtained from the conversion of solar radiation, wind power, geothermal heat, organic waste, water energies, and biomass utilisation techniques,
Allmeans that contribute to significantly saving energy by resorting to bio-climatic engineering techniques in the construction field.
The legislator subjected the conversion of renewable energies to the provisions of Law 04-09, which include:
Solar energy, which includes photoelectric conversion, thermal and kinetic conversion,
Biomass energy which includes “wet” anaerobic conversion processes by means of alcoholic methanogenic fermentation, dry denaturation, carbonisation, and gasification processes,
Wind energy which includes mechanical conversion and electromechanical conversion,
Geothermal energy, which includes recovery in thermal form.
Furthermore, within the framework of enacting mechanisms for promoting renewable energies, the legislator required the issuance of an original certificate that proves the origin of renewable energy.
Here, the legislator referred to the organisation and regulation for which Executive Decree 15-69 was issued and was amended by Decree 17-167,[10]which specifies the precepts for that matter.
The renewable energy guarantee of origin certificate is thatdocument that establishes that a specific energy source comes from renewable energy or from a joint production system that is granted by the Electricity and Gas Control Committee to the person that applies for a certificate that confirms the origin of renewable energy[11].
This certificate may be obtained by submitting to the Electricity and Gas Control Commission an application formthat is signed by the applicant. This form isthen attached to a set of other documents that are stipulated by the Algerian legislature in the same decree. Accordingly, the above commissioncarries out a preliminary study of that application within ten days starting from itsfiling date. If the committee finds out that the attached file does not comply with the effective regulations, then the owner will be notified so he can eventually complete it. However, if the file is confirmed, the committee shall issue an acknowledgement of receipt and decide on the application within a period of time not exceeding one month.
It then emits a decision either to accept the application on the basis of which a certificate proving the origin of the energy is delivered or to reject it with justification[12].
In the context of promoting renewable energies, the legislator provided incentive measures by granting the applicant financial, tax, and customs privileges for activities that contribute to enhancing energy efficiency and promoting renewable energies.
Moreover, project owners may also benefit from the privileges stipulated in the Investment Law due to the fact that investing in renewable energies helps to benefit from the incentive system for priority sectors[13].
Second: Institutional mechanisms to promote investment in renewable energies
It is worth indicating that Algeria has endeavoured to establish a set of infrastructures within the framework of the institutional dedication to promoting renewable energies. Some of these are:
1-The National Observatory for the Promotion of Renewable Energies
It was established under Article 17 of the aforementioned Law 09-04. It is considered a national agency that undertakes and is responsible for the promotion and development of renewable energies.
2-The National Fund for Renewable Energies and Cogeneration
It was established in accordance with Article 63 of Law 09-09, which includes the Finance Law for the year 2010[14]. This article states that: “A Special Allocation Account number 131-302 is opened in the Treasury Writings, and is entitled the National Fund for Renewable Energies; it is registered in this account.”
Executive Decree 11-423defines the modalities for managing the Special Allocation Account131-302 that is linked to the Fund.
The Fund is expected to finance projects and grant interest-free loans from banks and financial institutions without guarantees. It also endeavours to reduce customs rights and value-added fees when importing raw materials and semi-finished products that are supposed to be used in the equipment industry in the field of renewable energies in Algeria.
3-Department of Renewable Energies and Energy Efficiency
It was created in 2019 by virtue of Executive Decree 19-280[15]. This is a public corporation in the field of energy that is endowed with legal personality and financial independence. It is under the tutelage of the Prime Minister and is administered by a governor who is appointed by Presidential Decree. Moreover, it ensures that the national strategy for the development of renewable energies and energy efficiencyis adequately implemented.
This agency is also responsible for following up on all related technical and economic developments, particularlywith the intention of informing and enlightening government institutions on issues related to their activities. It also seeks to identify and assess all scientific and technical information that is linked to their activity. It is accountable for the processing, exploitation, preservation, valorisation, and dissemination of this information. It is expected to identify and evaluate the capacities of renewable energy resources that are available and can economically be exploited in various regions of the country.
4- Ministry of Energy Transition and Renewable Energies
The Ministry of Energy Transition and Renewable Energies was established in the year 2020. Its primary mission is toensure the implementation of the renewable energies program that was set up by the government in a rapid and more dynamic way, especially now that fuel dependence has become impracticable,considering the significant drop in oil prices. For this reason, Algeria deems it necessary to search for alternative energy sources in order to secure domestic demand and liberate it from the reliance on hydrocarbons, and therefore embody the energy transition that depends on energy efficiency in a way that satisfies the consumer needs and guarantees theprotection of the environment.
Third: Renewable energies are an economical alternative in Algeria - Some southern Wilayas (Provinces) as a model
The solar power plant in Al-Khanj in the Sahara desert, in the region of Laghouat (southern Algeria),is composed of 240 000 solar panels with a capacity of 60 megawatts. The energy produced there covers one-seventh of the energy needs of the region.
This project, which was completed in 2016, is a prototype and is part of the country\u27s metamorphosis. Its main objective is to conserve fossil fuel resources and reduce greenhouse gas emissions[16].
In the same context, the Wilaya of Adrar has supported several renewable energy projects. The purpose of these projects is to search for and develop new sources of energy that can generate electricity for the benefit of the population and can also raise the exploitation rate in order to eliminate the problem of summer power outages when the demand for electricity is significantly increased.
Moreover, the local authorities, as well as the research and development supervisors, launched important projects regarding the way wind and solar energy can be exploited efficiently throughout the whole year in the Wilaya of Adrar. It is worth specifying that this Wilaya has been strengthened with three new power generation stations with a total of 33 megawatts. The largest station to generate electricity from solar energy has a capacity of 20 megawatts. It is located at the northern entrance to the town of Adrar. This station was realised by a Chinese company with a total cost of around 380 million Algerian Dinars.
The second station, which is located in Ksar Kabartene in the municipality of Tsabit,about 60 km from Adrar, produces electricity from solar energy. Its production capacity is estimatedat 3 megawatts and contributes greatly to preserving the environment.
Another 10-megawatt wind power plant has also been completed in partnership between Algeria and France. This stationcurrently has 12 wind columns as a first stage. After a deep study, it was decided to install this station in an area that is windy throughout the year[17].
The existing projects and those scheduled for the future are a clear indication that the Wilaya of Adrar is undergoing a real metamorphosisto become a leading energy producerin the medium term. This gives it the possibility to integrate into the course of developing energy sources in Algeria and will certainly contribute to local and national development in general.
Conclusion
This study allowed drawing the following conclusions:
Algeria is seriously focusing its attention on renewable energies and is encouraging investment in this domain as an alternative to fossil energies;
Investing in renewable energies contributes to achieving economic gains, improving social conditions, and preserving the environmental heritage. It also helps to reduce the depletion rate of energy resources;
Algeria has established institutional bodies that structure the investment process in renewable energies. A special ministry was created for that, which reflects its perpetual intention to promote and develop this sector.
Based on the above, one can therefore make the following recommendations:
Provide real estate for renewable energy projects that require large areas;
Update the legal texts to allow using solar energy in private and public buildings;
Pay attention to material and moral support in order to activate and encourage research in the field of renewable energies;
Intensify foreign cooperation and partnership in renewable energy investments;
Disseminate the renewable energy culture among citizens by organising awareness days;
Develop a strategy for the development of renewable energies and createadequate financing mechanisms to support and encourage clean energy within the energy mix that is adopted and certified in the development process.
Bibliography
Legal texts:
Law 98-11, including the Directive Law and the five-year program on Scientific Research and Technological Development - Official Gazette 62, issued on August 25, 1998, amended by Law 05-08 of February 23, 1998 - Official Gazette 10, issued on February 27, 2008, cancelled by law 12-15 of December 30, 2015, including the Directive Law on Scientific Research and Technological Development - Official Gazette 71, issued on December 30, 2015.
Law 09-99 of July 28, 1999, regarding energy control - Official Gazette 51, issued on August 02, 1999.
Law 09-09 of December 30, 2009, which includes the Finance Law for the year 2010, Official Gazette No. 78, issued on December 31, 2009.
Law 01-02 of February 05, 2002, regardingElectricity and Gas Distribution through Channels - Official Gazette 08, issued on February 06, 2002.
Law 09-04 of August 14, 2004, regarding the Promotion of Renewable Energies within the framework of Sustainable Development - Official Gazette 52, issued on August 18, 2004.
Law 18-22 of July 24, 2018, regarding Investment - Official Gazette 50, issued on July 28, 2022.
Decree 83-131 of February 19, 1983, including the ratified agreement concluded between the Government of the People\u27s Democratic Republic of Algeria and the government of the Kingdom of Belgium in the field of Developing New and Renewable Energies - Official Gazette 08, issued on February 22, 1983.
Executive Decree 11-423 of December 14, 2011, including the Modalities for Managing the Special Allocation Account 131-302, entitled the National Fund for Renewable and Shared Energies - Official Gazette 68.
Executive Decree 15-69 of February 11, 2015, specifying the Modalities for Proving the Renewable Energy Guarantee of Origin Certificatesand the way to use it - Official Gazette 09, issued on February 18, 2015, amended and supplemented by Executive Decree 169-17 of May 22, 2017 –Official Gazette 31, issued on May 28, 2017.
Executive Decree 19-280 of October 20, 2019, including the Establishment, Organization, and Functioning of the Department for Renewable Energies and Energy Efficiency - Official Gazette 65, issued on October 24, 2019.
Executive Decree 22-302 of September 08, 2022, specifying the Criteria for Qualifying Structured Investments and the Modalities for Benefiting from the Advantages of Exploitation and Evaluation networks - Official Gazette 43, issued on September 18, 2022.
Scientific articles
Boufeniche Wassila: The Role of Energy in Activating the Dimensions of Sustainable Development in Algeria during the period from 1990-2016 - Algerian Journal of Social and Human Sciences, Volume 6, Number 2, 2018, p.17.
Safia Auld Rabih Akloubi, Mohamed Akloubi: The Legal and Institutional Framework for Renewable Energy in Algeria - Sawt al-Qanun Magazine, Volume 08, Issue 02, year 2022, p.1387.
Tarek Makhlouf: The Legal System for the Promotion of Renewable Energies in the Algerian Legislation - Algerian Journal for Security and Development, Volume 09, Issue 16, January 2022, p.153.
Belkhiri Mourad: Mechanism for Proving the Source of Renewable Energy in the Algerian Legislation - Journal of Real Estate Law, Volume 5, Number 1, 2018, p.112.
Internet websites
Research unit in renewable energies in the desert: https://urerms.cder.dz /
https://www.euronews.com/2022/10/03/algerias-renewable-energy-potential-solar-power-is-the-way-to-go
Footnotes
[1] Boufeniche Wassila: The Role of Energy in Activating the Dimensions of Sustainable Development in Algeria during the period from 1990-2016 - Algerian Journal of Social and Human Sciences, Volume 6, Number 2, 2018, p.17.
[2] Safia Auld Rabih Akloubi, Mohamed Akloubi: The Legal and Institutional Framework for Renewable Energy in Algeria - Sawt al-Qanun Magazine, Volume 08, Issue 02, year 2022, p.1387.
[3] Tarek Makhlouf: The Legal System for the Promotion of Renewable Energies in the Algerian Legislation - Algerian Journal for Security and Development, Volume 09, Issue 16, January 2022, p.153.
[4] Belkhiri Mourad: Mechanism for Proving the Source of Renewable Energy in the Algerian Legislation - Journal of Real Estate Law, Volume 5, Number 1, 2018, p.112.
[5] Decree 83-131 of February 19, 1983, including the ratification of the agreement concluded between the Government of the People\u27s Democratic Republic of Algeria and the Government of the Kingdom of Belgium in the field of developing new and renewable energies - Official Gazette 08, issued on February 22, 1983.
[6] Law 98-11, including the Directive Law and the Five-Year Program on Scientific Research and Technological Development - Official Gazette 62, issued on August 25, 1998, amended by Law 05-08 of February 23, 1998 - Official Gazette 10, issued on February 27, 2008, abolished by Law 12-15 of December 30, 2015, including the Directive Law on Scientific Research and Technological Development - Official Gazette 71, issued on December 30, 2015.
[7] Law 09-99 of July 28, 1999, regarding energy control - Official Gazette 51, issued on August 02, 1999.
[8] Law 01-02 of February 5, 2002, regarding electricity and gas distribution through channels - Official Gazette 08, issued on February 6, 2002.
[9] Law 04-09 of August 14, 2004, regarding the Promotion of Renewable Energies within the framework of Sustainable Development - Official Gazette 52, issued on August 18, 2004.
[10] Executive Decree 15-69 of February 11, 2015, specifying the Modalities for Proving the Renewable energy guarantee of origin certificate and the use of these certificates - Official Gazette 09, issued on February 18, 2015, amended and supplemented by the Executive Decree 169-17 of May 22, 2017 - Official Gazette 31, issued on May 28, 2017.
[11] Articles 02 and 03 of Executive Decree 15-69, amending and supplementing the aforementioned.
[12] Article 05 of Executive Decree 15-69, amending and supplementing the aforementioned
[13] Executive Decree 22-302 of September 08, 2022, defining the criteria for qualifying structured investments and
სამოქალაქო დავებზე მედიაციის გამოყენების უპირატესობები
No full textThe paper is devoted to the features and advantages of using mediation in civil disputes. First of all, the article discusses the experience of some foreign countries (Germany, Lithuania, Estonia, etc.) in the field of mediation, and then aims to determine whether Georgian mediation is based on the model of any country or whether it differs in any specifics in Georgia. The article discusses the unique and extensive possibilities of mediation in resolving civil disputes. Consideration of the case in court is based on the consideration of legal issues, mediation is not limited to the consideration of legal issues; Non-legal aspects can also be analyzed during mediation. Thus, it is a flexible and informal process that gives the parties maximum freedom to discuss any issue of interest to them and takes into account their interests. The mediation process can be limited only by the interests of the parties and the mediator’s creative methods. In this way, the parties have control over the process and results of mediation. The paper confirms that mediation in Georgia is based on a rather narrow model. In fact, the Georgian legislator lays the development of mediation on practice and gives freedom of action to the mediator, although he stipulates that this freedom is limited by the will of the parties. Accordingly, the mediation process should be carried out in compliance with the principle of voluntariness of the parties. Mediation is particularly attractive to businesses because of its benefits. For the parties, the confidentiality of the mediation process, saving time and financial resources, maintaining economic relations between the parties, focusing on positive aspects, and a favorable situation for both parties are important. Mediation is aimed at the self-determination of the parties, which helps to prepare the necessary ground for the settlement of the dispute. In addition, mediation can help prevent future disputes.
Keywords: Advantages of Mediation, Flexibility, A process based on personal interests of parties.
Introduction
One of the most important ways to resolve civil disputes is mediation. Mediation is interesting in the context of long and intense civil litigation.
The purpose of the paper is to determine the economic and legal consequences of mediation. This should be especially noticeable for the business sector. Therefore, it is necessary to determine what are the consequences of timely consideration of business disputes in order to avoid negative economic consequences and for the sake of fairness. In this context, it is necessary to study how mediation is characterized, how it differs from the consideration of a case in court. Therefore, it is important to explore both the advantages and disadvantages of mediation.
One of the most common ways to resolve civil disputes is to consider the case in court, however, in addition to its positive aspects, it is also characterized by some negative features. That is why it is advisable to study the institution of mediation and find out its significance.
In addition, different models of mediation operate in a given country. It is interesting to know what is the experience of foreign countries in the field of mediation and how specific mediation is in these countries. At the end of 2019, Georgia adopted the Mediation Law, which proposed several general rules for conducting mediation. In this context, it should be clarified on what model the Georgian version of mediation is based - whether Georgia took into account the model of only one country, whether it shared a mixed model or formulated a specific rule for it.
The scientific article is also interesting in the protection of fiduciary relations in the process of mediation and new legislative changes. In this regard, it should be determined how fully the scope and possibilities of mediation have been studied and what role mediation plays in the process of resolving civil disputes.
Mediation models in a some foreign countries
In general, there are four models of mediation: 1. Fully voluntary mediation, when the parties turn to the mediator for any dispute that they could not resolve on their own. In this case, mediation does not require a law; 2. Voluntary mediation with certain incentives and sanctions. In this case, the parties are encouraged to use mediation, which is practice-oriented. This model requires a mediation law; 3. A mandatory initial mediation session, where the parties must attend an initial meeting with the mediator, free of charge or for a reasonable fee, to determine eligibility for mediation. This model also requires a legal framework for mediation; 4. Fully obligatory mediation. The parties must attend the mediation process and pay for the entire mediation process as a precondition for going to court. The mandatory aspect refers only to full participation in the process, while reaching a settlement is always voluntary. [1]
There are also broad and narrow models of mediation regulation.[2] In countries where mediation is widely regulated, the procedures are regulated in detail. These countries usually have a Mediation Law that broadly regulates issues related to the mediation process, as well as the relationship between mediation and other legal professions. This model is based on Austria, where the Civil Mediation Act is in force. France follows the same model, although in France the Civil Code, the Code of Civil Procedure, the Code of Criminal Procedure and the Labor Code directly deal with the mediation process.[3]
As for the narrow (limited) model, in this case the mediation process is not regulated in detail. This is due to the fact that the regulation of everything will hinder the development of the institution of mediation and limit it. In addition, mediation is an event that goes beyond the norms of civil procedural law, and its inclusion in its framework implies a limitation of the process. Countries that share this model do not establish procedural rules for mediation and obligations to train mediators, which are considered to be regulated by private initiatives.[4]
Germany
The term "mediation" may come from the Greek word "medos" (meaning "mediator", "neutral", "impartial") and the Latin root verb "mederei" (meaning "to heal") or "mediatio" (to mediate). From this point of view, the mediator is the mediator who, through his impartial mediation, helps the parties to the dispute to resolve it. Mediation is an alternative dispute resolution method that was first scientifically substantiated in the United States in the 1960s and 70s by employees of Harvard University and has since been used in many areas of life. Mediation is a procedure or method characterized by the constituent principles of voluntariness, autonomy and openness to results and carried out by a neutral, objective mediator (mediator). In the modern scientific, differentiated understanding, the history of mediation begins in the 1960s and 70s, although the idea of resolving disputes through the mediation of a neutral third party as an intermediary has a thousand-year tradition of many peoples. Thus, mediation is not a new phenomenon of the 20th century; However, only in the last forty-fifty years has there been a scientifically based and differentiated discussion of this possibility of resolving disputes, primarily in the United States and then in Europe.[5]
In Germany, mediation has been used only in certain areas since the early 1980s, but today it applies to a wide range of disputes. Mediation is used, for example, in family law, building law, environmental protection, tenancy and neighborhood disputes, employment law, business, schools, intercultural and other disputes. Certain requirements must be met in some areas. For example, a mediator in school mediation requires special skills than in environmental or business mediation, although the same principles are, of course, always present in all disciplines. Therefore, in Germany mediation has developed in almost all social and public spheres as an alternative to the classical litigation, or at least as an alternative to “prior dispute resolution”, and in some cases has become firmly established. C0ompared to other countries such as Switzerland, Germany does not appear to have made a major effort to incorporate mediation rules into procedural law. In Switzerland, in the modern era, it was decided to reflect the rules on mediation in civil procedural law. In 2004, Austria passed the Civil Law Mediation Act, which gave Austria a pioneering role in the legal strengthening of mediation in the German world.[6]
The main reason for the introduction and promotion of mediation was to reduce legal costs in Germany. Along with other justice reforms, Germany introduced and developed the institution of mediation.[7] Thus, the emergence of the institution of mediation was, as it were, considered as part of the function of impementing justice.
Initially, there were three forms of mediation process in the federal state of Germany:
1) so-called "Gerichtsexterne Mediation" (Gerichtsexterne Mediation), which was perceived as a process completely independent of legal proceedings and launched on the basis of a private initiative;
2) so-called "Mediation in court" (Gerichtsnahe Mediation). Indeed, it is institutionally connected with the process taking place inside the court (administration of justice), but it is not independent of the court as a state institution;
3) Mediation within the court (Gerichsinterne Mediation), which was both personally and territorially connected with the court and the civil process.[8]
Alternative dispute resolution includes elements of both procedural and substantive law in Germany. From material law, the norms of general contract law are used. The new German Mediation Law, which shares the European Mediation Directive, came into force in July 2012.[9]
The German mediation law recognizes that the court does not have the right to refer an ongoing dispute to external mediation, but may refer a pending case to judicial mediation.[10] However, German law encourages the parties to reach an amicable settlement of the dispute and use litigation as a last resort. According to section 15a of the German Code of Civil Procedure, parties must first try alternative dispute resolution before starting legal proceedings. [11]
However, approaches to prioritizing the use of mediation differ across German states. For example, 20% of cases in the Keele District Court go to mediation. Out of 70% of such cases, an agreement between the parties is reached only in 15%. If we take other courts, then here the data is significantly reduced or mediation is not offered at all. It depends on the opinion of the judges. The vast majority of judges believe that they can independently resolve disputes and do not express a desire to submit disputes to mediation. However, at present, mediation in Germany is stagnant, since in court disputes are resolved quickly (5-9 months, and in mediation - about 3 months) and there is a dependence on traditional rules of legal proceedings. However, in many regions the demand for mediation is growing and the share of mediation among cases pending before the court is quite high (20%).[12]
Lithuania
Lithuania has the Law “On the Use of Mediation in Civil Disputes”.[13] Here, the development of mediation has been driven by social peace, reduced litigation, consumer satisfaction, and time and cost savings. In Lithuania, parties and their lawyers are often offered to resolve civil or commercial disputes through mediation, especially in particularly complex cases. In 2019, the Lithuanian legislature empowered civil courts to require parties to attempt to resolve disputes through mediation when necessary. Compared with the data of 2015, when there were about 100 attempts to use mediation, official attempts to resolve disputes through mediation have already increased tenfold. Following the experience of Italy and other states, Lithuania took into account the obligatory nature of mediation in family cases, as well as the extension of the Lithuanian Law on Mediation to other cases.[14]
In addition, In 2005 a judicial mediation or settlement procedure was launched as a pilot in Lithuania. Summarizing the results of this program and the successes achieved with the support of the Ministry of Justice of the Republic of Lithuania, the Working Group was motivated to adopt the Judicial Mediation Rules in 2014, which entered into force on January 1, 2015. Judicial mediation applies to any civil case. According to statistics, in 2012, mediation was referred 17 times, in 2013 there were 37 such cases in mediation, in 2014 - 53, in 2015 - 123 and in 2016 - 313. The number of cases considered through mediation, doubled in recent years. If the parties agree to offer mediation, the mediator gives a written consent and the court has explained to the parties the essence of the mediation procedure, the judge must terminate the proceedings and refer the case to court mediation in Lithuania. The court also decides on the appointment or replacement of the mediator.[15]
Latvia
In Latvia, the Mediation Law was adopted on May 22, 2014. The adoption of this law was a step towards the development of mediation in Latvia, and mediation became official. The law strengthened the basic principles of mediation: voluntariness, confidentiality, equality and cooperation of the parties, neutrality and objectivity of the mediator. In addition, the law determines that the mediation process begins from the moment a written agreement is signed with the mediator, which reflects the essence of the dispute, the rights and duties of the parties and the mediator. Upon completion of the mediation process, the mediator may approve the mediation agreement, which is legally binding.[16]
Mediation is regulated by general law in Belgium, Estonia, Malta and Sweden. The purpose of this law is to provide for the resolution of individual and collective labor disputes. In certain cases, the general law applies to civil cases. For example, in Estonia and Latvia, mediation is used between a patient or his relatives and a medical professional. In addition, mediation is also effective here in collective labor disputes, when disagreements arise between the management of the healthcare institution and the trade union. This also applies, for example, to Belgium, Estonia, France, Malta, Great Britain. However, in Estonia, Malta and the UK, mediation is relatively rarely used in individual labor disputes between employers and healthcare professionals.[17]
Mediation is not widespread in Latvia, but this does not mean that parties never choose mediation to resolve their disputes. At the same time, the popularity of mediation is growing. The model of self-regulation of mediation works effectively.[18] There are certain requirements for a mediator in Latvia, namely: the mediator must be at least 25 years old, have a good reputation and no criminal record, have a higher education in any field, be fluent in Latvian, and have completed at least 100 hours of mediation research. Mediation is carried out with the help of certain procedural measures in Latvia. Firstly, mediation in Latvia is not mandatory, but the court encourages a plaintiff in a civil process to consider mediation as a dispute resolution option - at least as a possible dispute resolution tool. Accordingly, mediation is purely voluntary, although its use is encouraged by procedural rules and measures.[19]
Estonia
Mediation is the only way to resolve industrial (business) disputes in Estonia. Under these conditions, in 1995, the post of public mediator was created. Since its inception to the present day, the State Mediation Service has dealt with about 300 cases, 80% of which have been successfully completed.[20]
Mediation institutions are rarely used in Estonia. Here the law "On mediation" came into force on January 1, 2010. The Mediation Law covers both mediation and conciliation. If the court deems it reasonable and necessary, it directs the parties to participate in the mediation process, as provided for in Article 1.3 of the Mediation Law. The law covers civil disputes and does not contain a list of these cases. Accordingly, the law applies to civil cases without limitation. However, a mediation agreement here can come into force only when this agreement concerns claims related to property, and if it is not property, then when the parties reach a compromise on the subject of the dispute. The court does not have the right to approve the resolution of a dispute regarding the validity or termination of a lease agreement and the release of a place of residence located in Estonia.[21]
Mediation contract and mediation agreement are used in Estonia. Mediation agreement can be certified by the notary to whom the parties apply. When parties have signed the mediation agreement, they are obliged to act in accordance with this agreement. Thus, this agreement contains elements of a binding legal agreement, in particular, it creates both the obligation of one party (the debtor) to perform certain actions, and the right of the other party (entitled person or oblige) to demand the performance of the action by the counterparty. The notary certifies the mediation agreement, if the parties ask for it. In case of failure to comply with the conditions, the parties must take the case to the country court. As regards financial matters, in order for the mediation agreement to be enforceable, it must be accepted by district court.[22]
Georgian model of mediation
Georgia took into account international experience and determined that it is necessary to develope and strengthen mediation, which ensures the release of the court from cases. The purpose of mediation is to help the parties resolve the dispute by mutual agreement, quickly and efficiently. Mediation will increase the efficiency of justice and save the court from cases where there is a possibility of ending the dispute by agreement of the parties. However, mediation is a flexible process that, together with the court and arbitration, emphasizes the particular importance of mediation in achieving a common goal.[23]
The legislator in Georgia, on the one hand, listed the cases to which judicial mediation is applicable, and on the other hand, established the possibility of extending mediation to any dispute if there is the will of the parties. According to the law, court mediation in Georgia is used for a) family disputes, except for adoption, cancellation of adoption, cancellation of adoption, restriction of parental rights, imprisonment, violence against women and/or domestic violence; b) on inheritance disputes; c) on neighborly disputes; d) on labor disputes, with the exception of collective disputes; on cases of realization of shared rights; e) property disputes, if the value of the subject matter of the dispute does not exceed GEL 2,000; f) on non-property disputes, g) also on any other dispute if there is an agreement between the parties (Part 1 of Article 1873 of the Civil Code). In fact, the legislator recognized the priority of the will of the parties and made their agreement the basis for considering any dispute through mediation.
An association agreement was concluded between the European Union and Georgia, under which Georgia assumed the obligation to develop alternative means of dispute resolution, especially mediation and arbitration, and create appropriate conditions for their use. With the adoption of the law "On Mediation", its main goal was to ensure precisely this requirement. On January 1, 2020, the Law of Georgia “On Mediation” came into force, according to which mediation is considered a new means of resolving civil disputes.[24]
The 2008 European Union Mediation Directive contains certain key features of civil and commercial mediation[25] for all Member States. It is significant that in most EU Member States there are two or three models of mediation, depending directly on the nature of the dispute. For example, mediation of civil and commercial disputes is based on a completely voluntary model in Belgium, Greece, Estonia, Germany, Saftang, Latvia and other countries. However, voluntary mediation with incentives and/or sanctions is also found in Estonia, Greece, Italy (in 92% of civil and commercial disputes), Malta and other countries.[26]
Georgian legislation recognizes both judicial and private mediation. The case is considered by judicial mediation in the event that a claim is filed with the court and the case is transferred to the mediator in the manner prescribed by civil procedural legislation (“Article 2, paragraph “b” of the Law “On Mediation”). According to the law, the period for considering a case in judicial mediation is 45 days, but at least two meetings must be held.It is allowed to extend this period for the same period only if there is an agreement between the parties.[27] The issue of timing was especially relevant during the pandemic.
The court proceedings have been going on for many years, and if, due to the coronavirus, the case cannot be resolved without an oral hearing, the court decides to postpone the meeting. Thus, the trial is dragged out, and the postponement of the consideration of the case leads to the fact that the resolution of the dispute is extended for a certain period and the tense background between the parties increases. In many ways, this negatively affects the business sector, as it can lead to negative economic consequences. The negative economic impact during the pandemic has been particularly noticeable in various countries.[28] Prolonged litigation is a prerequisite for increasing property damage. For example, if a business entity is waiting for the results of a court h
A NOTE FOR THE NEED TO REGULATE PRIVATE DEBT COLLECTORS’ ACTIVITIES IN GEORGIA – EXISTING REGULATORY GAP AND SELECTED COMPARATIVE APPROACHES
Get PDFThe economic recession, COVID-19 pandemic, growing indebtedness of the consumers, and enhancement of credit borrowings such as credit cards, personal and household loans have led to the growing numbers of the credit default, and the subsequent surge of the debt collection practices in the World and Georgia is no exception. Even though private debt collection is necessary on the market, it usually involves abusive or unfair practices towards the debtors in the debt recovery process. This Article identifies an existing regulatory gap in the field of private debt collection and analyzes traditional branches of Georgian law to answer the question of whether they can tackle and prevent abusive and unfair debt recovery practices. It also gives an overview of the selected regulatory responses – Anglo-Saxon systems (the United States and the United Kingdom) possessing the most developed system. The specific focus rests on the building blocks of an efficient regulatory system touching upon the private debt collection activities with the idea that will follow the best practice and fill the regulatory gap.
Keywords: private debt collection, abusive and unfair practices, harassment, validation of debt, licensing, private action, public action.
Introduction
The economic recession, growing indebtedness of the consumers, enhancement of the credit borrowings such as credit cards, personal loans, store cards, and reduction of welfare policies have led to the growing numbers of the credit default and subsequent surge of debt collection practices.[1] In recent years, Covid-19 pandemic induced economic crises and further defaults on the credits, and substantially affected the debt market worldwide.[2] Debt collection is an integral part of the business, but, it is usually proclaimed as a “necessary evil”[3] in a society. Debt collectors usually have a negative image, whose only intention is to extract money without feelings and compassion towards the debtors. It is rightly mentioned that “[t]he collection of debts brings out the ugliness in people”.[4] On the other hand, promises shall be fulfilled by the debtors, contracts - enforced by the state to ensure the market continues functioning. Therefore, despite the proclaimed image of the debt collectors, it is rightly noted that they are necessary evils in the states. Their job starts when the debtor defaults on the debt and repayment terms are violated. Creditors can resort to judicial or out-of-court debt collection. In the cases when court proceedings and subsequent enforcement is relatively expensive, the credits resort to the private debt collection service or sale of debt to the secondary market where debt collecting firms operate.[5] Problem arises when private debt collectors involve outrageous, abusive practices in the process of collecting debts.[6] Multiple phone calls, embarrassing comments, threatening debtors with criminal charges, informing third parties regarding the debtor’s monetary obligations, and violating their privacy – are examples of abusive practices used worldwide, and Georgia is no exception.[7] Allowing the co-existence of the private enforcement together with the public enforcement on the market is an efficient decision made by the state that can result in timely debt collections and fulfillment of contractual obligations.[8] However, private enforcement needs to be regulated to avoid excessive human rights violations during the debt collection that cannot be justified by the aim of timely enforcement of contracts and debt repayment. States strike to find the balance between allowing private debt collection agencies to work on the market for the efficiency of debt collection (where it is possible) and the protection of debtors’ rights.
Georgia lacks sector-specific regulation of the private debt collection process. It should be noted that the statement does not refer to the service of the “private bailiff” (“private enforcement officer”) exercising public authority under the Law of Georgia on Enforcement Proceedings.[9] Their actions are regulated under the law, but activities of the private debt collection business representatives stay out of the specific regulation. Private debt collectors (or private debt collector agencies) are the ones who do not constitute governmental bodies, nor perform such functions on behalf of the state and whose services include collection of personal data of debtors, identifying their property, contacting debtors by telephone, mail or any other means, contacting debtors relatives, involving persuasion or any other tactics to ensure debt collection.[10] Illegal processing and disclosure of personal data of the debtors to the third parties in the collection process has been addressed by Personal Data Protection Service of Georgia.[11] Debt collecting agencies operating on the market were fined for the processing and disclosing debtors’ personal data to the third parties, violating data protection laws of Georgia.[12] Despite the fact that one aspect of the debt collection abusive practices is caught by the data protection laws, it is questionable whether Georgian legislation without sector-specific regulation addressing data collectors’ activities can ensure collection of debts without excessive calls, threatening practices, violating debtor’s dignity or peace. Hence, this paper aims to analyze the existence of the regulatory gap in the Georgian system in relation to the private debt collectors’ activities and provide comparative approaches from the selected jurisdictions regulating the area that can serve as the starting point for further legal research in the stated direction.
EXISTING REGULATORY GAP
Classical branches of law are generally considered to be ill-suited to catch abusive practices in the process of private debt collection.[13] Extreme abuses in debt collection, such as taking or threatening illegal action that does not involve a threat of violence, killing, damaging health or destroying property cannot be qualified as a crime according to the Criminal Code of Georgia.[14] Therefore, continuous threatening of debtors to institute criminal, civil or administrative proceedings even in cases when the statute of limitations to sue has expired (in case of a civil action) is an abusive debt collection practice that is not caught by any provision of the Criminal Code of Georgia unless debt collectors involve a threat of killing, damaging health or destroying property and the threatened debtors have a reasonable fear that the threat will be carried out. In addition to this, false statements and representations of the debt collectors, such as attempts to collect an amount greater than was owned or handing in letters to the debtors that look like court decisions without forgery (without forging signatures or stamps), are also not caught by the Criminal Code of Georgia. In line with the stated argumentation, excessive phone calls or other means of communication during non-working hours, harassing, oppressing, or abusing practices in the communication within the process of debt collection are not punishable as crimes in Georgia. Hence, criminal law is inadequate to deal with unlawful and misleading (or fraudulent) activities involved by private debt collectors.
Turning to corporate law, it is relevant to mention that this body of law ensures the registration, structuring, and functioning of the business entities.[15] Absence of any licensing requirement for private debt collecting agencies (firms) leads to the conclusion that the National Agency of the Public Registry as the registration authority cannot serve as an effective gatekeeper disciplining debt collecting agencies working on the market.[16] Hence, company registration proceedings and rules related to the functioning of the business entities can hardly prevent debt collecting agencies involving abusive practices from entering the market. The National Agency of the Public Registry of Georgia is not obliged to look behind the corporate shield and prevent certain debt collectors from entering the market. In addition to registration requirements, no special regulation is in force that could subject debt collectors to licensing or require non-conviction of the debt collectors. Furthermore, no governmental authority is equipped with supervisory powers to oversee the activities of the private debt collectors that could have adequate abilities to tackle abusive practices and protect debtors from excessive debt collection.[17] Absence of disciplinary authority means that no governmental authority can impose disciplinary sanctions, revoke licenses (as it is not required to obtain), monitor debt collection practices for ensuring fair debt collection. Hence, general corporate law cannot preclude private debt collection agencies involving abusive practices to enter the market and operate.
Resorting to consumer protection law, it should be noted that new law on consumer rights protection was adopted in Georgia in March 2022 after several years of gap in consumer protection regulation.[18] However, consumer protection law pays attention to radically different risks that business entities might pose for the consumers (as a weaker party), while classical risks inherent to the debt collection, such as abusive or oppressive practices, stay out of the reach of the consumer protection laws. Therefore, laws addressing abusive commercial practices or discriminatory approaches towards consumers in the process of selling goods or receiving services are different from debt collection since debtor cannot be considered as the consumer of the service or purchaser of goods. Hence, consumer protection law and the one that recently entered into force without corresponding cases and legal tradition in this area cannot serve as the basis for the protection of debtors.
To sum up, traditional branches of law developed and currently in force in Georgia are insufficient to cover the whole spectrum of abusive practices private debt collectors undertake, and therefore, the regulatory gap exists.
GENERAL OVERVIEW OF THE EXISTING REGULATORY APPROACHES
States have different regulatory approaches to debt collection practices, in general, and activities of private debt collectors, in particular. Common law legal family has always been favorable to self-help and debt collection practices[19] and, therefore included regulations tackling abusive debt collection practices. Within the common law system, sector-specific legislation (separately addressing abusive debt collection practices) and general regulations (involving traditional branches of law) are present. As mentioned above, general regulations (substantive law) operate differently as they aim to enforce contracts, ensure the operation of business entities, protect consumers, or punish criminal offenses; while sector-specific regulations aim to address abusive debt collection practices as such.[20]
It is relevant to start with the U.S. sector-specific regulations addressing private debt collection since the U.S. approach represents itself as the most comprehensive legal framework in the stated direction.
2.1 The U.S. Model
The U.S. model includes a legal framework concerning private debt collection practices on federal and state levels. The primary protection of individual debtors is provided by the Federal Debt Collection Practices Act (FDCPA), aiming to prevent, monitor and sanction unfair debt collection practices.[21] The stated Act includes the definition of the private debt collector that involves any person using “any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts”[22] or any person directly or indirectly involved in the collection or attempts of collection of debts. It also includes the procedure of the debt validation and the list of prohibited practices that include (non-exclusively) the following: threatening to use violence or other means to harm an individual’s reputation or property, usage of obscene and any other abusive language, publishing or disclosing debtor’s data, repetitive calls, false representations of debt collectors regarding status and amount of debt, or any possible legal actions related to debt, collection of additional interest fees and charges incidental to the debt obligation, threatening to start prosecution against the debtor, communicating outside working hours.[23] The Act also provides for the defense mechanisms, individual and collective actions of debtors if unfair debt collection practices were involved.
Most states of the U.S. have implemented state fair debt collection practices statutes – mini FDCPAs, that are more detailed than federal regulation and provide for more protective rules for debtors.[24] It should also be stated that federal FDCPA is a de minimis rule and state statutes can afford more protection to consumer-debtors, such as licensing requirement.[25] Most of the mini-FDCPAs include the licensing requirement at a state level for private debt collectors that is another ex-ante protective mechanism against unfair debt collective practice.[26] List of the unfair debt collection cases together with the licensing requirements and the regulatory framework for the civil action in case of violation, collectively constitute an excellent example of the sector-specific regulation of the debt collection practices.
2.2 The U.K. Model
The U.K. Model is described as the “soft touch” approach in relation to the debt collection practice regulation.[27] Rules are fragmented and can be found in different branches of law, mostly consumer protection law; however, it was rightly mentioned by Tibor Tajti that the U.K. “has one of the most developed and tested laws on private debt collection – even if fragmented and scattered over more branches of law, and the most important part actually being soft law today.”[28] The fact that the U.K. does not have a comprehensive act regulating debt collection cannot lead to the conclusion that the unfair practices are not addressed. Consumer Credit Act involves the protection of consumer debtors, regulates relevant conditions for the acquisition of debt collection licenses, allows taking of measures against applicants, authorizes debt adviser services, and considers vulnerability conditions of particular debtors (for instance, mental health conditions).[29] It is idiosyncratic characteristics of the U.K. system that it is only concerned with consumers and affords to them wide range of protections against unfair collection practices.
The Financial Conduct Authority (FCA) is the responsible state agency guaranteeing that customer debtors are treated with “forbearance and due consideration”.[30] The FCA has broad enforcement, supervisory, investigative, and disciplinary powers vis-à-vis private debt collectors.[31] Also, there are restricted debt collection practices in the Consumer Credit Sourcebook (CONC)[32] and the Regulated Activities Order of 2001 which indicates that debt collection is the regulated activity and special permission is required to get engaged into those activities.[33] Hence, the FCA views debt collection practice as an inherently high-risk activity, and the regulatory structure is designated to protect the consumer and limit unfair approaches.
The FCA oversight over the debt collection practices starts with communicating the information to debtors. Private debt collectors are obliged to communicate the information in a clear, fair, and not misleading in nature, also they do not have the right to mislead the debtors regarding their legal position or the amount of debt.[34] Hence, debt collectors are not allowed to send the letters that look like court claims, using inappropriate language, contact debtors at unreasonable times or require premium calls.[35] Debt collectors are obliged to present balance statements to the debtors and provide adequate information regarding their outstanding debt obligation; also, debtors are entitled to a reasonable period of time and opportunity to repay their debts, and it is even required to consider “suspending, reducing, waiving or canceling any further interest or charges” in cases when a debtor is in financial difficulties.[36] Moreover, debt collection is prohibited when a debtor is particularly vulnerable (for example, mentally ill) to make any financial decision.[37]
In addition to the abovementioned protections against abusive debt collection practices guaranteed under the CONC, the Consumer Rights Act 2015 deals with unfair debt collection assignment terms and debt collection contracts.[38] What is considered to be “unfair” under the stated Act is decided on a case-by-case basis, but it shall cause a significant disbalance between the parties to the detriment of the debtor.[39] Debt collection assignment terms are subject to the judicial review. The same applies to the fee and charges that are subject to general regulations, as well as court oversight from the perspective of the common law approaches to the penalty clauses.[40] The U.K. regulatory structure also provides for the Financial Ombudsman Service, which is entitled to regulatory oversight mechanisms to stop excessive debt collection practices.[41]
Despite the various mechanisms in force in the U.K.’s regulatory structure to tackle excessive debt collection practices, it is criticized for lack of clarity since various legal acts are involved in the process, and enforcement of the rights guaranteed in relation to the vulnerable debtors is not always guaranteed.[42] It should also be noted that criticism of one of the prominent legal approaches is relevant for the countries without regulatory structure designated for the private debt collection process and activities.
2.3. The Building Blocks of an Efficient Regulatory System
The main building blocks employed by an efficient regulatory system shall be the following: “(1) definition of the debt collectors; (2) the existence of a licensing system; (3) the presence of legal requirements concerning (a) communication with the debtor and third parties, (b) harassment of the debtor or third parties, (c) using misrepresentation or misleading information, (d) validation of the debt, and (e) costs and additional charges; (4) open-end definitions; (5) enforcement via private action; and (6) enforcement via state action”.[43]
2.3.1 Defining Private Debt Collectors
In the process of regulating private debt collectors, it is noteworthy to determine to whom the law applies. For example, the U.S. model (federal level FDCPA) only covers private debt collectors involved in debt recovery, their employees and agents, and lawyers active in the process.[44] Definitions are more extensive on State levels aiming to involve creditors and assignees.[45] Taking into account the idea that regulating debt collectors aims to protect debtors and prevent abusive debt recovery practices, the definition of a debt collector shall be clear, precise and all-encompassing. Hence, it shall include original creditors, assignees, and any third parties (including lawyers) involved in the debt collection process.
2.3.2 Licensing System
Jurisdictions regulating private debt collection (namely, the U.S. (State level), the U.K., Germany, Sweden, Belgium, Finland, Norway, Denmark, Greece, and Latvia) have implemented licensing systems designated for private debt collectors.[46] Operating licenses are issued upon request to the private debt collectors who meet regulatory requirements and aim to observe them throughout their activity. Failure to meet the preconditions can result in criminal sanctions,[47] or administrative measures, suspension, or termination of the debt collection activity.[48] It is also possible to impose the financial guarantee system for recovery of financial losses or damages from abusive practices. A licensing system is one of the major building blocks for an effective regulatory system designated to protect debtors from abusive debt recovery activities.
2.3.3 Abusive Practices
Regulating system of the debt collection activities shall include the list of abusive practices. It shall be clearly stated in law debtors shall be communicated in a fair and precise manner. Restrictions shall include activities related to communication with the debtor or third parties. Debtors shall be notified regarding their current standing and outstanding debt obligations; on the other hand, regulating communication with debtors shall protect the private life of the debtor, their relationship with third parties, their public image and dignity.[49] Hence, debtors shall not be exposed to public shame or abusive language and behavior in the process of debt collection.
In addition, debtors shall be entitled to the validation of debts to ascertain that the claim is valid and it is their obligation to pay. Debtors are entitled to a written notice specifying the amount owed and the documents certifying the debt.[50] Thus, debtors shall get information regarding the original creditor, assignee, and their outstanding debt.
Moreover, the abusive practices list shall include the activities of the private debt investors that are aggressive in nature or intends to harass or abuse the debtors. They shall also be protected from any misleading information regarding the debt, its collection, their legal standing, fees, or charges.
2.3.4 Open-end Definitions
The regulating system shall also include open-end definitions to follow the innovation and creation in the field of abusive debt collection practices. Adopting “soft law” mechanisms such as guidelines by the supervisory bodies are discussed as one option (such as the U.K.’s Consumer Credit Sourcebook); however, it is inherently challenging for
ევროპეიზაცია, როგორც საქართველოს დემოკრატიზაციის ინსტრუმენტი
No full text This paper reviews the European Union-Georgia relations and explores why and how the Europeanization has been a tool for Georgia’s democratization. It examines the notions of Europeanization and democratization, and scrutinizes their linkage in the context of Georgia. In order to prove the research question, the research reviews several major official documents and implemented reforms, mostly in democracy, good governance, human rights, strengthening democratically accountable institutions, justice, freedom and security. The paper argues that democratization agenda has been driven by Europeanization because of three reasons: it was a legitimization factor; they had value convergence; and pragmatic reason – EU provided necessary technical expertise, knowledge and financial resources for facilitating the painful reforms and easing their transitional consequences.
Keywords: Democratization, Europeanization, Georgia, Association Agreement
Introduction
Since the restoration of independence, the intensity of Georgia\u27s European orientation has varied from government to government. However, from a historical point of view, overall, it can be said that the country has been firmly on the path of rapprochement with the West. Since 1995, all Georgian governments have chosen European integration as the foreign policy orientation (at least on rhetorical level), which was due to several major factors. The latter created a demand for European integration across the country, and the authorities used European integration to legitimize their political decisions and actions.
One such factor was the democratic development – the European Union was the main source of financial, technical and expert assistance necessary for the implementation of critical reforms. Also, the implementation of reforms was accompanied by tangible results for the population, which was an opportunity for the authorities to receive additional political dividends in the society.
During this period, Georgia has taken a long and overall quite a successful path towards the EU. The latter has had a decisive influence on the development of institutions in Georgia. With the signing of the Association Agreement in 2014, the EU, Georgia’s foreign policy towards the Union and the country\u27s European integration became an integral part of Georgia’s internal policy.
By EU becoming an integral part of Georgia’s polity, politics and policies, it can be said that Europeanization has become the driving force of Georgia’s democratization and that the border between these two processes has actually been erased (it has becoming ever more challenging to demarcate the borders between these two processes).
Therefore, the research question is as follows – why and how Europeanization is an instrument of democratization of Georgia? To answer it, the paper analyzes official documents signed between Georgia and the EU, including the European Neighborhood Policy, its agenda and progress reports, the Association Agreement, its agenda, and speeches made by high-ranking officials.
Also, for comparing with official documents, important democratic reforms implemented in 2014-2022 are reviewed to demonstrate that Europeanization was the determinant of the democratization agenda in Georgia.
Additionally, in order to fully understand the research and its results and to correctly understand the terms used, the relevant academic literature has been studied.
Following the introduction, the second chapter is devoted to the definition, operationalization and interrelation of the concepts of Europeanization and democratization. The next chapter briefly reviews the Georgia-EU relations, as well as the tools, institutions and mechanisms necessary for the Europeanization of Georgia. The fourth chapter analyzes the relationship between Europeanization and democratization in the context of Georgia. The fifth chapter summarizes the research results, while the last section of the document is a bibliography.
In one part, the paper reviews the Europeanization instruments, institutions and structures, that is, how Europeanization is processed domestically triggered by the interaction with the Union. In another part dedicated to why Europeanization is an instrument for Georgia’s democratisation, the paper argues that democratization agenda has been driven by Europeanization because of three reasons: 1) Europeanization is a legitimization factor for decision makers; 2) Europeanization and democratization has a similar value dimension and thus, complement each other in the Georgia context; 3) the European Union provided necessary political support, technical expertise, knowledge and financial resources for facilitating the painful reforms and easening their transitional consequences, be it financial or electoral, thus, adding pragmatism and feasibility to the cost and benefit calculations of the decision makers.
The paper is prepared in the frameworks of a three-year EU Erasmus+ Jean Monnet module “Europeanization as a Tool for Democratzation of Georgia” (620916-EPP-1-2020-1-GE-EPPJMO-MODULE) managed by European University. The module aims at promoting EU knowledge among Georgian students and young academics by using interdisciplinary approaches for teaching and research with the particular focus on the EU-Georgia Association Agreement and democratization of Georgia. The entire action is designed to stimulate knowledge on the European integration process as an instrument of democratization among the students of various disciplines and ensure developing the research by the young academics. The module also includes the component of the policy dialogue on national level with academics and policy makers regarding the implementation of the current EU obligations that Georgia takes.
Europeanization and Democratization
This chapter is devoted to the definition of the concepts of Europeanization and democratization. Since each of them is a rather broad term, this document will discuss only their main aspects, which are important to understand the example of Georgia.
In order to fully comprehend the Georgia’s case, it is necessary to define and distinguish between the concepts and terminologies of complex fields of Europeanization and democratization, as well as to relate them to the Georgian context.
Europeanization
Europeanization has been a buzzword for Georgia for decades. It is usually understood in the society as an implementation of European values, governance and institutional systems. Indeed, Europeanization in this paper is understood as establishing a “local analogue” of the EU, adapting national social and political principles and mechanisms to the EU standards and practices.
In addition, since the inclusion of Georgia in the European Neighborhood Policy in 2004, Europeanization is associated with Georgia’s European integration and the achievements on this path. In other words, this is the legislation (i.e. acquis communitaire), “ideas, norms, rules, organizational structures and procedures, behavioral patterns, [that] spread intentionally or unintentionally beyond integrated Europe”, in this case in Georgia.
Europeanization as a research topic in academic scholarship has become a growth industry in EU research since the early 1990s when Central and Eastern European countries started a massive transition from communism to democracy. Researchers refered to this ‘Europeanization’ as a process of “EU-driven change of their political and economic systems”[1]. The understanding of Europeanisation was expanded by harmonization of Switzerland and Norway to the EU[2] as well as the transitions of the EU membership candidate states[3]. The Europeanization literature was enriched by the inclusion of more distant EU neighbors in the research[4].
Schimmelfennig & Sedelmeier[5] suggest two dimensions of mechanisms of Europeanization. First, they believe Europeanization can be either EU-driven or domestically-driven. Second, they argue that institutional logics (i.e. ‘logic of consequences’ or ‘logic of appropriateness’[6]) also influence the Europeanization process. In any way, the authors believe that the EU’s impact is generated by conditionality and socialization as two main mechanisms.
First, conditionality is based on rewards/sanctions. The “EU provides non-member governments with incentives such as financial aid, market access or institutional ties on the condition that they follow the EU’s demands”. In the conditionality mode, transposition of norms happen because of material or social rewards. The process can be voluntary or non-voluntary – decision-makers may make certain steps without pressure or by realizing that appropriate action will be followed by unwanted EU response or consequences.
Second, socialization is about EU’s effort to ‘teach’ a partner country those norms, values and rules that build an ‘appropriate behavior’. Socialization is a long, gradual and voluntary process of persuasion during which its new participants learn, grasp the deeply rooted ‘acceptable’ rules, norms and values in a step-by-step manner. As Schimmelfennig puts it, socialization “comprises all EU efforts to “teach” EU policies – as well as the ideas and norms behind them – to outsiders, to persuade outsiders that these policies are appropriate and, as a consequence, to motivate them to adopt EU policies”.
For instance, how is Europeanisation made on institutional level? Based on the EU pressure/impact, changes start to happen on national level – establishment and/or transformation of institutions. When an impact of Europeanisation is strong on a country, an institutional architecture is established or the current system is adapted to the new needs in the country. In order to manage the harmonization process, the country needs to transform its regulatory, institutional and legal framework into the EU analogue, harmonize its legislation to the EU acquis communitaire, etc.
Internal situation in the country has a decisive role in such transformation – national administrative culture, traditions, political setup, experience/history of statehood and other factors are critical. It is for this reason that each candidate country has its own approach and experience in the EU accession process.
Schimmelfennig[7] argues that “EU’s impact in candidate countries has resulted primarily from the external incentives of accession conditionality rather than social learning or lesson-drawing”. Or in other words, candidate countries strived for the EU membership and implemented relevant reforms in anticipation of the membership benefits.
Democratization
Democratization is one of the most frequently used legal and political terms in modern Georgia. In this work, democratization is seen as the establishment of democracy, the process of transition from an undemocratic political system to a democratic order.
Democratization has its determinants and factors:
Social determinants/internal factors (past, traditions and social norms) – democracy has a higher chance of success where there is relevant cultural and historical experience. The more democratic experience, traditions and social norms exist in a society, the greater the possibility of democratization success;
International determinants/external factors (for instance, international intervention, Europeanization, etc.) – the process of democratization can be hindered or facilitated by international events, foreign intervention, Europeanization, etc.;
Economic determinants (including modernization, industrialization, level of education, development) – as a rule, the more economically strong and developed a society is, the more there is a demand on the establishment of democratic institutions.
Interdependence of Europeanization and democratization
Democratization and Europeanization do not describe a static, stagnant state. On the contrary, they describe changing processes, constant renewal, constant striving for improvement.
According to the first and most important block of EU membership criteria (the so-called Copenhagen criteria), the state institutions that ensure the protection of democracy, rule of law, human rights and minority rights should function properly in accordance with European standards. Therefore, it can be said that Europeanization (the process of joining the EU) implies the democratization of the country., meaning that Europeanization and democratization (as processes) are closely related.
This was especially evident during the accession process of Central and Eastern European countries to the EU. Their path to membership involved a transition from a communist system to democracy[8]. Similarly, close relationship has existed during the already implemented or ongoing expansion of the Union to the Balkans and the East. Georgia is one of such countries.
Europeanization of Georgia
Europeanization of Georgia: History
The development of Georgia-EU relations was contingent upon various internal and external factors. In the periods when circumstances were promising, there was an opportunity to expand the ties. According to these windows of opportunity, the history of EU-Georgia relations can be roughly divided into three stages: 1991-2004, 2004-2013, and 2014 to date.
During all three periods, the EU had a regional approach. In particular, relations with Georgia were strengthened within a broader approach, in parallel with strengthening relations with other countries – first by using the partnership and cooperation agreements, then the European Neighborhood Policy and Eastern Partnership, and finally the Association Agreements.
1991-2004 – Distanced Engagement
In 1991-2004, for the EU, Georgia was a geographically distant, politically unstable country located in a region with numerous conflicts. During this period, the main tool of the Union was the provision of humanitarian and technical aid[9], which may not have been impressive in absolute numbers, but it gave hope for development to the Georgian society immersed in poverty and lawlessness.
Since 1995, Georgia has been given the opportunity to benefit from the EU’s Generalized System of Trade Preferences (GSP). In 1996, a Partnership and Cooperation Agreement was signed, which entered into force in 1999[10]. Thus, the first steps were taken to regulate and approximate the economic, political and legal framework.
Overall, apart from isolated cases, due to the lack of interest from the EU, the agenda of Georgia-EU relations was quite limited. Accordingly, the years 1991-2004 can be rightfully called the period of “distanced engagement”.
2004-2013 – Growing Engagement
In the early 2000s, internal and external factors changed dramatically: in 2003, through the “Rose Revolution”, a new political force in Georgia came to power initiating radical democratic transformation. Georgia appeared on the radar of the EU, and, from the point of view of its member states, was able to do the unthinkable – despite the difficult regional and internal context, Tbilisi started building a democratic state. Moreover, the accession of the Central and Eastern European countries to the EU was in preparation, which would move the borders of the Union further eastward, towards Georgia. First potential, and then new member states (especially Poland and the Baltic states) actively supported the expansion of EU’s ties with Georgia. This prompted EU’s interest in the energy resources of the Caspian Sea, which would allow the Union to diversify its imports. The changing international security environment (campaigns against international terrorism in Iraq and Afghanistan) increased the West’s interest toward Georgia[11].
As a result, pragmatic interests and rising needs led to the expansion of the newly created European Neighborhood Policy towards the South Caucasus and the inclusion of Georgia in it from 2004. The EU’s interest toward Georgia grew exponentially: in 2003, it appointed a special representative for the South Caucasus in Georgia, and in 2004, it sent the EU Rule of Law Mission (EUJUST THEMIS) to Georgia.
The 2008 Russia-Georgia war was a turning point as the EU for the first time assumed the role of a security actor in Georgia. For instance, the Union mediated between the warring sides and mediated the process of signing the ceasefire agreement. On September 25, 2008, the EU created the post of the Special Representative for the crisis in Georgia, which was merged with the post of the EU Special Representative in the South Caucasus in 2011. On October 1, 2008, the European Union Monitoring Mission (EUMM) was established in Georgia. The 2008 Russia-Georgia war also accelerated the implementation of the Eastern Partnership Initiative.
On February 25, 2013, an action plan for visa liberalization was officially presented to Georgia, within the framework of which Georgia implemented large-scale reforms in the areas of document security, border and migration management, asylum policy, public order and security, foreign relations and human rights.
No less important was the framework agreement signed on November 29, 2013, which allowed Georgia to participate in the ongoing crisis management operations under the auspices of EU.
Thus, the period of 2004-2013 can be called “growing engagement” within the European Neighborhood Policy and the Eastern Partnership. However, each integration step was more of a response to specific needs and existing challenges than a part of a strategic vision and proactive policy on EU’s part.
2014 to date – Associated Engagement
With the signing of the Association Agreement in 2014, a new stage in Georgia-EU relations began. The Agreement, which also includes a Deep and Comprehensive Free Trade Area component, replaced the earlier Partnership and Cooperation Agreement. Today, relations between Georgia and the EU are legally regulated by this document. It provides for the political, economic, and institutional Europeanization of Georgia and significantly improves the quality of bilateral ties.
Simultaneously with the Association Agreement, several important events took place, which further strengthened Georgia’s European aspirations: on June 23, 2016, an agreement on mutual exchange of classified information was signed: on March 28, 2017, after the successful implementation of large-scale reforms, the visa-free travel regime for Georgian citizens in the Schengen area was launched; from July 1, 2017, Georgia became a member of the Energy Union; on October 11, 2017, the Georgia-EU high-level strategic dialogue on security issues was launched; Georgia participated in several ongoing crisis management operations under the auspices of the European Union; the EU actively continued to participate in the conflict settlement process both at the political-diplomatic level and in confidence-building mechanisms.
Moreover, with the constitutional reform of 2017, Georgia’s aspiration for membership in the EU and NATO was constitutionally enshrined.
Thus, overall, since 2014, the EU-Georgia ties have been completely adjusted to the association agreement and the reforms in it. This period can be described as the era of “associated engagement”.
Russia’s war against Ukraine fundamentally changed the conditions for the EU’s eastward enlargement. On February 28, 2022, Ukraine applied for the EU membership, which was followed by the membership applications of Georgia and Moldova on March 3, 2022. Georgia was able to independently answer 2,669 questions in the two-part accession application and return it to the European Commission in one month. In June 2022, according to the historic decision of the European Council, Georgia was given a European perspective and asked to fulfill 12 recommendations in order to obtain a candidate status. From then on, Georgia is in the process of fulfilling the proposed recommendations.
Presently the Association Agreement remains the regulatory document of the EU- Georgia bilateral ties. In case of receiving the candidate status and initiating the accession negotiations, the associated engagement will end and the foundation will be laid for a new, more ambitious stage, the ultimate goal of which will be Georgia’s membership in the Union.
Europeanization of Georgia: Actors, Institutions
The Georgian model of European policy coordination is as follows: the main decision-making body is the governmental commission for European Integration, headed by the Prime Minister. The Ministry of Foreign Affairs is the central coordinating institution and the secretariat of the government commission. Within the framework of the government commission, interagency working groups have been created that work on specific topics.
More specifically, the Governmental Commission for EU Integration has the following main functions:
Support of proposals and recommendations to support separate directions of Georgia’s European integration process.
Discussion of relevant information and facilitation of the National Action Plan implementation process.
Facilitation of the process of harmonizing Georgian legislation with EU legislation.
Facilitation of the process of implementation/enforcement of the recommendations developed within the framework of separate institutional mechanisms of Georgia-EU cooperation.
Among the other actors operating in Georgia in the process of Europeanization, the following are worth mentioning:
Information center on NATO and the European Union, the main topics of which are the European Neighborhood Policy and the Eastern Partnership, the Partnership for Mobility, the Association Agreement, visa liberalization, the EU\u27s involvement in conflict resolution and security and stability. The main activities of the information center include seminars, trainings, EU week, publications, regular meetings in the regions, themati
LEGAL FEATURES OF RENUNCIATION OF INHERITANCE
Get PDFThe topic concerns the legal features of refusing to accept an in- heritance. The prototype of rejection of inheritance originates from an- cient times. Roman law occupies a special place among the ancient legal systems, which belongs to the strong values of the legal culture, emphasizing its enormous importance for the legal development of both European and other states. According to the legislation in force in Georgia, the law regulates relations related to the refusal to accept an inheritance. The heir has the right to refuse to receive the inheritance by law and by will from the circle of heirs. Refusal to accept inheritance is irreversible and requires special attention. In its content, it is clearly different from the avoidance of inheritance. It is not allowed to refuse to receive the inheritance partially, for a period or with any reservation. If the heir refuses to accept the inheritance, he must altogether refuse it within the time limits defined by the law. An inheritance that passes to a decedents heirs is considered the total of all assets and liabilities of the decedent.Legal norms related to inheritance relations need to be adjust- ed. The central part of the legal norms regulating inheritance has not changed after the adoption of the Civil Code of Georgia. Georgian legislation and practice in this area are not without flaws, and problematic issues have accumulated that need to be understood in a new way.The work is a legal study, the purpose of which is to review the legal features of the refusal to accept the inheritance, the shortcomings, the legal norms used, and judicial and notary practices based on the comparative legal analysis of the legal literature of foreign countries, related to the refusal to accept the inheritance and the avoidance (non-acceptance) of the inheritance. Also, the work aims to present the problems, which will allow us to develop conclusions and recommendations to determine how to regulate this relationship.
Keywords: estate; heir; refusal; avoidance; unacceptability; term
Introduction
Inheritance law has an important place in our daily life as well as in civil turnover. It gives each member of society a guaranteed opportunity to live and work with the knowledge that the material and spiritual good he created during his life, based on his own will, will pass into the hands of close people after his death. In exceptional cases, it is possible, in accordance with the established rule, to transfer part of such property to persons not foreseen by the will of the deceased. The acceptance of an inheritance and the refusal to accept it are essential components of the estate proceedings and are considered both by law and by will at the time of inheritance. It is the observance of the general provisions that ensure the protection of the interests of the deceased person and his successor, as well as other participants in the inheritance relationship.[1]
Legal Features of Refusal to Receive the Inheritance
Rejection of an inheritance, like acceptance of it, is a one-sided transaction and is subject to the general requirements of the transaction.[2] The main categories of inheritance law received detailed regulation within the Roman legal system, which fully addresses the institution of disinheritance. The ancient Roman institution of inheritance allowed only privileged heirs to disinherit.[3]
It is interesting to discuss the topic according to the Civil Code of Georgia and compare it with the norms of the Civil Code of foreign countries. According to German inheritance law, the heir can accept or refuse the inheritance from the moment of the opening of the estate,[4] considered as acts of a purely personal nature. According to Swiss law, legal or designated heirs can refuse the inheritance passed to them if the solvency of the heir is officially established at the time of his death.[5] According to French inheritance law, an heir who refuses to accept an inheritance is considered never to be an heir.[6] In the doctrine of the Russian Federation, refusal of inheritance is regulated based on Article 1157 of the Civil Code of the Russian Federation. 1140.1. On the basis of the Article, it is not allowed to refuse the inheritance if the property is transferred to the inheritance fund in the order of inheritance.[7] As we can see based on comparison, the rejection of inheritance originates from ancient times, the law allows the heir to express his will freely, to refuse to receive the inheritance if he does not want to receive the inheritance.
To smoothly conduct the inheritance proceedings, the heir must submit the application of refusal within a reasonable time; that is why the terms related to the refusal to accept the inheritance are particularly emphasized. According to Article 1434 of the Civil Code of Georgia “an heir may renounce the estate inheritance within three months after the day when he/she became aware or ought to have become aware of the fact that he/she had been called to accept the inheritance. If there is a valid reason, a court may extend this period, but for not more than two months. [...]”.[8] In relation to time limits, German law is noteworthy, according to which the time limit for renunciation is the same as for the acceptance of the inheritance. In addition, it is important that the heir can no longer refuse the inheritance if he agrees to receive the inheritance or if the deadline for submitting an application on this issue has expired; from that moment the inheritance is considered accepted.[9]
It is true that the concept of “silence” or "inaction" is not used in German law, but it is through “inaction” that the inheritance is considered. The heir can refuse the inheritance only within six weeks, and the issue is resolved differently if the heir had his last place of residence only abroad or the heir was abroad at the beginning of the term, the period of refusal to accept the inheritance is six months;[10] As far as Greece is concerned, the refusal can be done within four months from the day when the heir learned of his departure and the reason for it. If the deceased lived abroad or the heir learned about the transfer of the estate while abroad, the term is one year and is suspended for the same reasons as the statute of limitations.[11]
According to Swiss law, the time limit for the declaration of refusal of inheritance is three months. The term is counted from the moment when they became aware of the death of the heir unless they can prove that they learned about the opening of the estate later,[12] it is possible to extend the current term by the competent authority, or a new term is established.[13] As we can see, in the legislation of all countries, people are given a reasonable period, it is also worth noting the different terms by which, due to a number of circumstances, certain benefits are provided for the heir in relation to the terms. It would be better to have some regulation regarding the deadlines in the Georgian legislation. Because the deadline is the necessary component that often becomes problematic in the inheritance proceedings due to a number of circumstances, such as: the heir\u27s health condition, being in a prison, being abroad, lack of information of the heir and other factors.
Based on comparative law, it is worth noting the place of declaration of refusal to accept the inheritance: based on the legislation in force in Georgia, such an application must be submitted to the notary bureau, in Germany - before the court; In France, disinheritance is done by an authentic specific deed by two notaries; In Greece, the refusal is carried out at the secretariat of the conciliation court; According to Swiss law, the refusal must be declared orally and in writing before the competent authority. It turns out that the place of declaration of refusal is the competent authority everywhere.
I would like to touch on the problem of the heir\u27s refusal to accept the inheritance by the heir\u27s evasion, non-acceptance. In such a case, the heir does not apply to the Notary Bureau for acceptance of the inheritance, nor does he refuse to accept it. It is implied that he does not want to receive the inheritance. Such behavior puts the heirs receiving other estates and creditors of the heir in an uncertain situation. It is better if the will of heir will be expressed from the beginning. Expiration of the term indicates the termination of the possibility of the heir being involved in inheritance-legal relations.[14] It is important to distinguish whether the heir refuses or avoids receiving the inheritance. In Georgian inheritance relations, a person at any time can make a statement confirming the fact of non-receipt of inheritance.[15] The fact of evading inheritance is unclear and disorderly. The main reason for this is the presence of creditors of the heir, which hinders the heir.[16]
There are often cases when the heir’s creditors are present when receiving the inheritance; therefore, the heir has to satisfy their demands. Avoidance of responsibility by the heir has become more common in recent years. The cases revealed in judicial and notary practice show the difficulties associated with evasion of inheritance both by will and by law during inheritance.[17] The heirs do not intentionally receive the inheritance within the period defined by the law, nor refuse it and/or in the second case when they did not receive the inheritance. However, it is proved that they own it. But if the heirs want to avoid liability to the decedent\u27s creditors in the first place, the question of meeting the creditor’s demands comes into question.
A comparative legal analysis of the laws of foreign countries is important for considering the issue in every way.[18] As can be seen from the research, the absence of an open expression of the heir to receive the inheritance by the heir has been considered since the early period, which historically originates during the reign of Emperor Justinian, and continues in German and Swiss law. In German law, the law “by omission” provides for the acceptance of the inheritance; it contains an indication that the inheritance is considered accepted if the deadline for its acceptance has expired. According to Swiss law, if the heir does not apply for a refusal to accept the inheritance within the prescribed period, then he is considered to have accepted the inheritance without any reservations. It is worth noting that, as a result of settling the issue in this way, it is possible to consider the heir as having received the inheritance, giving the heir a certain responsibility and obligation. He will try to appear on time to apply to the relevant competent authority, if he does not want to get involved in the legal relations of inheritance, he will to some extent, regulate the uncertainty related to the avoidance/non-acceptance of inheritance, which is often expressed by the inaction of the heir.
Conclusion
In conclusion, it can be said that to be citizen-oriented and simplify the problematic circumstances related to inheritance proceedings, it would be better to share and use the experience of other countries. Based on the consideration of a number of circumstances, such as the health condition of the heir, stay in prison, stay abroad, and other factors, the existing legislation of foreign countries on the mentioned issue should be shared in the Georgian law, in the light of legislative regulation, the terms of acceptance of inheritance and refusal to accept inheritance should be equalized, as well as acceptance of inheritance and determining a single period of refusal to accept the inheritance for a period of up to one year, which is enough time for the heir to decide to refuse to accept the inheritance and take appropriate measures. In addition, if the heir expires the refusal period to accept the inheritance and does not apply to the relevant competent body with a statement of refusal, he should be considered to have received the inheritance. Against the background of the legislative regulation of the mentioned issues, it will be possible to reduce the appeal to the court for citizens, creditors, and interested persons, to partially solve the problems related to the refusal to receive the inheritance and the avoidance of receiving the inheritance.
Bibliography
Akhvlediani, Z., 2000. Commentary on the Civil Code of Georgia. Tbilisi: Law.
M. and Bychko.I., 2020. History of the Institute of Inheritance and Development of Forms and Development. <https://cyberleninka.ru/article/n/institut-otkaza-ot-nasledstva-istoriya-stanovleniya-i-razvitiya?fbclid=IwAR2MxeIQDreLHjiEUmiX_eL2T6lfrq4h7bovxtHp>
Gresse, M.E., 2014. Notarial Notebooks of Comparative European Law. France: Volume I.
Shengelia, R. and Shengelia, E., 2007. Inheritance Law. Tbilisi: Meridian.
Shishmareva, T.P., 2021. The Problem of Disputing Transactions of Disinheritance in Insolvency Proceedings in Russia and Germany. <https://cyberleninka.ru/article/n/spornye-voprosy-notarialnoy-deyatelnosti-v-oblasti-nasledovaniya-svyazannye-s-neprinyatiem-nasledstva-i-otkazom-ot-nego >
Chechelashvili, Z., “Translator”, 2018. Swiss Civil Code. Tbilisi.
Johnson, E., Successor Liability: A Key Consideration for Business Acquisition Planning, FryBerger Law firm press, 2019. < https://www.fryberger.com/articles/successor-liability-a-keyconsideration-for-business-acquisition-planning/> [18.03.2022].
Normative materials:
German Civil Code. 2019. <http://www.library.court.ge/upload/giz2011-ge-bgb.pdf> [Last accessed: May 5, 2022].
Greek Inheritance Proceedings. <https://www.notary.ge/res/docs/sakanonmdeblo/eleqtronuli_biblioteka/saberdznetis_memkvidreoba.pdf> [last viewed: April 30, 2022].
Order 71 of the Minister of Justice of Georgia dated March 31, 2010 “On the rules of notarial execution” <https://matsne.gov.ge/ka/document/view/1010061> [last viewed: May 10, 2022].
Civil Code of Georgia. <https://matsne.gov.ge/ka/document/view/31702?publication=117> [Last viewed: February 25, 2022].
Footnotes
[1] Shengelia, R., & Shengelia, E. (2007). Law of Inheritance. Tbilisi: “Meridian”, pp. 13-14.
[2] Akhvlediani, Z., (2000). Commentary on the Civil Code of Georgia. Tbilisi: “Law”, p. 480.
[3] Bichko, M., & Bichko, I. (2020). Heritage Pronunciation Institute History of Forms and Development. p. 144. <https://cyberleninka.ru/article/n/institut-otkaza-ot-nasledstva-istoriya-stanovleniya-i-razvitiya?fbclid=IwAR2MxeIQDreLHjiEUmiX_eL2T6lfrq4h7bovxtHp>
[4] German Civil Code (2019). Article 1946. <http://www.library.court.ge/upload/giz2011-ge-bgb.pdf> [last viewed: May 5, 2022].
[5] Chechelashvili, Z., (2018). Swiss Civil Code. Tbilisi: “Translator” Article 566, p. 160.
[6] Gresse, M.E., (2014). Notarial Notebooks of European Comparative Law. France: Volume I, p. 65.
[7] Shishmareva, T.P., (2021). Disputing Disinheritance Transactions in Insolvency Proceedings in Russia and Germany. Law, 41, p.195. <https://cyberleninka.ru/article/n/spornye-voprosy-notarialnoy-deyatelnosti-v-oblasti-nasledovaniya-svyazannye-s-neprinyatiem-nasledstva-i-otkazom-ot-nego>
[8] Civil Code of Georgia (1997). Article 1434. <https://matsne.gov.ge/ka/document/view/31702?publication=117> [Last viewed: February 25, 2022].
[9] German Civil Code (2019). Article 1943. <http://www.library.court.ge/upload/giz2011-ge-bgb.pdf> [last access date: May 5, 2022].
[10] Also, there is Article 1944.
[11] Greek Inheritance Proceedings. Article 1847. <https://www.notary.ge/res/docs/sakanonmdeblo/eleqtronuli_biblioteka/saberdznetis_memkvidreoba.pdf> [last access date: April 30, 2022].
[12] Chechelashvili, Z., (2018). Swiss Civil Code. Tbilisi: “Translator” Article 567, p. 160.
[13] Also, there is Article 576, p. 162.
[14] Shengelia, R., & Shengelia, E. (2007). Law of Inheritance. Tbilisi: “Meridian”, p. 158.
[15] Ministry of Justice of Georgia (2010, March 31) Order #71, “On the rules of notarial execution”, Article 78. <https://matsne.gov.ge/ka/document/view/1010061> [last access date: May, 2022].
[16] Shengelia, R., & Shengelia, E. (2007). Law of Inheritance. Tbilisi: “Meridian”, p. 159.
[17] Akhvlediani, Z., (2000). Commentary on the Civil Code of Georgia. Tbilisi: “Law”, p. 468.
[18] Johnson, E., Successor Liability: A Key Consideration for Business Acquisition Planning, FryBerger Law firm press, 2019. < https://www.fryberger.com/articles/successor-liability-a-keyconsideration-for-business-acquisition-planning/> [18.03.2022].
CRUISING DOWN THE STREETS OF JUDICIAL DISCRETION: CONSTRUING THE EQUITABLE RELIEF IN COMMON-LAW BANGLADESH
Get PDF Anizman Philip states that discretion starts at the dusk of law and has the potential to inflict justice and injustice. The legal realm of common-law Bangladesh historically evolved from stare decisis, which is mostly discretion in the conventionally accepted form. To better understand, specific reliefs, statutory interpretation, grant of bail in a non-bailable offence, and so on are discretionary equitable reliefs. This empirical qualitative study was conducted to expound the undefined concept of judicial discretion, its curb and extent, its possibility of misuse, and its application in the judiciary. Through this study, it has been settled that the scope of the misapplication of discretionary power is comprehensive. External factors such as the good character of a litigant influence discretionary decision-making immensely. Discretion is to courts like water is to a fish. It is inherent, whereby it finds its silver lining in ex debito justitiae. The scope of discretion is voluminous; thereby, greater are its concerns.
Keywords: Court’s Discretion; Judicial Discretion; Discretionary Jurisdiction; Discretionary Power; Suo Moto.
Introduction
‘When law ends, discretion begins, and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or unreasonableness.’[1]
Anizman Philip
Conceptually, discretionary jurisdiction is deferred statutory authority on judges[2] to evaluate facts within the premise of principles laid out by law,[3] especially at the juncture of a dilemma between multiple valid courses of action.[4] Whereby the doctrine of balance and comparative analysis is applied between various legal principles to determine the significance, relevancy, and applicability of each principle to a particular case[5] in order that conclusive outcomes forwarding justice are excavated wherever the use of such discretionary power is legislatively permitted.[6] Speaking of being statutorily allowed in Bangladesh, such notion is provided by any enactment containing phraseologies such as ‘the Court may suo moto,’ ‘as the Court otherwise directs,’ ‘as the Court deems proper,’ ‘as the Court thinks reasonable,’ etcetera[7] or confers discretionary power by the discreet use of the jargon. Courts electing to manifest such discretionary jurisdiction can base its decision on stare decisis or on established principles, policies, or prudence, on rights or relationships between an individual and state, identities,[8] which on an important note must be reasonable, logical, and probable based on bonafide deductions of facts to secure justice.[9] The perception that discretion strategically extends jurisdiction is not invalid. However, the preference lies on the broader prospect that discretion is jurisdiction itself,[10] extending to civil and criminal proceedings and private and public laws.[11] Furthermore, Court’s discretionary power in Bangladesh is not constrained to the provisions of law. It, however, relies heavily upon and extends its exercise on sound judicial principles.[12] Griffith (1994), in his report providing guidelines for sentencing and judicial discretion for the then Australian Government, delineated discretion, stating that arbitrariness in decision-making could be vanquished by deliberating policy on a requirement basis to promote confidence between the state and its subject through belief in the fairness of the process.[13] Numerous instances call on discretion to resolve a dispute (Fletcher, 1984).[14] In Bangladesh, neither such instances nor the term ‘discretion’ has been expounded, and its parameters have been undefined.[15] This study identifies and expands the concept of discretion, its scope of misapplication, its reach and curb, and its applications in the courtroom.
Problem Statement
History is irrefutably evident that the independence of the Judicial Organ of Bangladesh exists only on paper. The organ of last resort is overshadowed by the executive authority of the Ministry of Law, Justice and Parliamentary Affairs, exercising exorbitant control over all its affairs like appointments, promotions, administration, dismissals, training, etcetera.[16] In the Government of Bangladesh v Advocate Asaduzzaman Siddiqui[17] popularly known as the 16th Amendment Case, the obiter dictum of the Appellate Division recognized that the constitutional responsibilities conferred on judges could not be performed diligently, with ease of mind, unless the judicial organ is separated completely in its truest sense. Surprisingly, the Masdar Hossain case relating to the independence of the lower judiciary has been called on for review to establish a balance of power by the finance minister.[18] Time has sufficiently disclosed that political variables and affinity towards wealth, displayed mainly through the ascension of the judicial hierarchy, disproportionally influence a judge’s discretion.[19] In compliance with such, claims that the judicial organ of Bangladesh is incoherently politicized suffice the antagonism and distrust between the two dominant political parties of the State. Furthermore, elevation in judicial ranks is a product of the political discretion of the ruling party. Hence, such political discretion demands favours of judicial discretion from the elected appointees.[20] In respect of the above, the statement by Anizman Philip comes to mind as the variables directing the path of discretion are likely to invite unreasonableness and recur tyranny and injustice. Therefore, it is essential to reveal how the undefined discretionary jurisdiction of the Court functions. In Bangladesh, civil reliefs are moderated by the discretionary power of the Court, admissibility of evidence, permissive judicial presumptions are discretionary, and procedural aspects, both civil and criminal, allow discretionary intervention.
Aims and Scope
It has already been established hereinbefore that the concept of discretion and its parameters have not been defined in Bangladesh[21] and without definite standards lies the risk of discrimination and misapplication[22]. Considering such, this research undertakes to enlarge the followings viz.
Expound the Concept of Discretion,
Analyse the Equitable Relief factor of Discretionary Jurisdiction.
Explore the probable misapplication of Discretionary Jurisdiction.
Study the Applications of Discretionary Power in the Courts of Bangladesh.
Investigate the limits of discretionary jurisdiction.
Not much work has been done on the current topic from the perspective of Bangladesh and since judicial discretion covers a wide array of legal affairs, hence, this study entices social prominence within the prospect of law.
METHODOLOY
The course of this study is empirical, whereby the qualitative data analysis approach was adopted to extract its results. A qualitative study deploys in-depth scrutiny en route revealing the relevant interconnection and interdependency between concepts.[23] Primary and secondary documents, e.g., relevant scholarly articles, news reports, relative laws of Bangladesh like the Specific Relief Act of 1877, the Code of Criminal Procedure 1898, the Code of Civil Procedure 1908, and reports of local and international organizations, was extensively studied and analyzed. It is well-settled that Bangladesh regulates within the legal system of the common law.[24] Wherein any decision of the Apex Court not subjected to per incurium by the same division gracefully maintains the status of stare decisis.[25] Moreover, the law declared by the Apex Court extends an irrebuttable binding effect on all other Courts inferior to it.[26] Keeping the doctrine of stare decisis and practical approach in mind, law journals, decisions of higher Courts of Bangladesh, and other countries relevant to the scope of this research have been elaborately analysed.
RESULTS & DISCUSSIONS
This study embarked on the journey to elaborate on the notion of discretion, and it is an equitable relief. This study also set out to discover the probable scope of misapplication of discretionary jurisdiction, its limits, and applications within the judicial system of Bangladesh. The following sections attend to all those queries.
Expounding Discretion
Imagine a crossroad, and each road presents itself as a viable travelling option. Like the crossroad, discretion empowers a judge to opt and choose between alternative options, and each option is viable and lawful.[27] State v Hazi Osman Gani[28] narrowed the crossroad of discretion to distinction evolved from one\u27s conscience and judgement of facts parallel to the statutory guidance between right and wrong. In a broader sense, discretion implies freedom of conscious choice.[29] The legal standpoint of judicial discretion is best depicted and understood via the doughnut theory, i.e., like the hole in the doughnut, judges may only elect to exercise discretionary jurisdiction on instances where legislative loophole or scope for such exists.[30] The solid dough represents the guidelines of such jurisdiction, or better, the constraints of it.[31] Considering the solid dough, the frosting is served best when the discretion is sound and sprinkled with the combination of non-arbitrary, reasonable, and lawful stance as the toppings.[32] On another note, discretion is delegated authority conferred as an aid to draw substantive and procedural decisions,[33] especially on occasions when circumstantial fairness demands action by the Court given a litigant is disentitled to such as a matter of right.[34] Furthermore, judicial discretion plays an integral role in dispensing justice.[35] Given that discretionary power is founded on a judge\u27s individual judgment and conscience, subject to general and special limits. Therefore, discretionary jurisdiction acts as an element of the legal status of a judge within the norms of duties and responsibilities.[36] According to Hart, discretionary jurisdiction, like precedent and legislation, potentially relates to a credible source of law.[37] Figure 1 depicts the various statutorily allowed discretionary provisions of Bangladesh.
Discretion & It’s Principles
According to Bushway and Forst (2013),[38] discretion is appraised on outcomes anticipated to be generated from it, as the employment of discretionary jurisdiction is moulded of rules and obtained as a by-product of extensive inquiry. Such by-product of substantial inquiry is categorized into two specific ideologies, i.e., primary discretion and secondary discretion. The former allows a greater array and independence of choice, which is the general undertaking of the subject by professionals and academics of law. On the other hand, the latter is restricted mainly by rules and principles, thus permitting criticism of the correctness of such discretion.[39] In re above, it is apparent that secondary discretion governs judicial prudence in Bangladesh. Navigating further into the categorization, given the established grounds that discretion in Bangladesh is secondary, i.e., it is subjected to rules and generated as a result of judgement and bonafide conscience. Discretion and legal approach to rules can be correlated by delimiting a precise line of variation between discretion and judicial conduct regulated by rules and legislations.[40] Conceding to the above, discretion does not exist independently but with rules to exert intra-vires and is structured according to policy[41] or to deter from being a threat to the rule of law[42] or a technical unnecessity. Such scourges of discretionary jurisdiction exist based on its prospective of being deployed capriciously and arbitrarily.[43] Moreover, Kotskulych[44] proposed a few elite canons of judicial discretion and its functionality, viz.
Principle of Justice:
provides the Court with the challenge of choosing from evidential information provided by litigants.
Principle of Pragmatism:
The Court must obviate from jumping to any conclusion without scrutiny and conclusion of proceedings.
Principle of Devising:
The presiding judge must weigh between evidence based on its significance to the matter presented.
Principle of Professional Optimism:
The Court must adhere to the corresponding legislation in an effort to promote faith in it.
Principle of Prudence:
The Judge must decide to apply bonafide conscience, knowledge and skill specific to the situation, justified by law with due regard for moral values, rationality and legal actuality.
Principle of Dynamic Acclimatization:
The Court presiding must be equipped with skilful and prompt knowledge to implement legal proceedings.
Principle of Ethical Accountability:
The Judge must assume to assist the moral demands of society and differentiate between social right and wrong and decide considering human emotions.
Liu and Li devised an experiment forwarding stimulated questionnaires to judges on the subjects of a cause of action and anticipation of results, legal concept and applicability of laws, and interpretation of legal standards to be discretionarily decreed. The experiment was designed around two distinct categories of defendants, viz. defendant of good moral character and defendant of bad moral character[45] (hereafter numerically represented in that respective order). Though, the character and morals of a litigant are nugatory aspects of the law. However, the results cumulated were auspicious and are tabulated below:
In the study on the cause of action and anticipation of results, the scenario presented to the 38 participant judges was a claim for medical damage resulting from injuries incurred on the plaintiff from attempting to extinguish a village fire caused by the explosion of oxygen tanks. In contrast, the plaintiff was intoxicated by alcohol. Only one participating judge applied the reasoning of character. The results, however, speak for itself.
The test on legal concepts and applicability of laws dealt with an endangered parrot. Out of the 72 participating judges, only 1 ruminated the character of the defendant in the decision.
This study presented a classic example of a delay in the performance of a contract. The scenario was that a rental contract for two units was established between the lessor and the lessee containing a specific amount of damage. The delivery of possession was delayed two days prior to the move-in date. The plaintiff\u27s claim was the specified amount due to incurred loss of business and the shifting expenses, while the defendant argued that the liquidating damage was excessive.
This study\u27s pertinence to the Bangladeshi legal scenario is prominently immaculate, relating to the fact that judges in Bangladesh account for the character, social status, previous criminal history, etcetera., of the litigant while employing discretionary jurisdiction.
Equitable Relief
It has been determined beyond every query that a Judge is empowered via the statutory incorporation of the phrases ‘the Court may suo moto,’ ‘as the Court otherwise directs,’ ‘as the Court deems proper,’ ‘as the Court thinks reasonable,’ etcetera to apply discretionary jurisdiction.[46] Whenever a Judge commits to employ such legitimized discretionary power, it must ascertain that the use of such discretionary power expediate lawfulness and fairness via comprehensible judicial act and must not be a substitute for judicial arbitrariness.[47] A comprehensible judicial act denotes acquiring a solution that displays a direct juridical link, justice, accuracy, justifiability, and rightness[48] as justice must not only be done but must also be seen to have been done.[49] Adhering to constitutional principles is the perfect example of a direct juridical link.[50] Courts are the connectors of the missing link and possess the potential and responsibility to bring constitutional and democratic principles to task by reviewing the arbitrary use of discretionary power.[51] Arbitrary or fanciful use of discretionary power must be evidenced in Court for it not to be overturned.[52] According to Wright and Davis, discretionary decision-making allows flexible empirical growth of the common law by extending the scope of procedural fairness.[53] Thereby, judges could impose procedural obligations of consultative nature on the legislature[54] and not ignoring the fact that common law is judge-made law, i.e., law formulated from the knowledge, understanding, and discretion of judges. On every instance a Court elects to utilize discretionary jurisdiction, it acts as a Court of Equity. It, therefore, must conform not to deliver any of the parties into a position of undue advantage over the other,[55] it must also conform conduct of the parties, i.e., the willing performance of the committed transaction as equity repudiates to remedy the one that aids to the impossibility of performance.[56] It is unethical to demand a remedy after callously forcing a situation into the dark room of intervening impossibility. The maxim ex turpi causa non oritur actio, i.e., the fraudulent behaviour of a man cannot be the basis of an action,[57] comes to the rescue. Discretionary equitable relief attempts to solidify justice by practicing freedom of circumscribed choice to implement conscious judicial functions.[58] Additionally, a conscious judicial functioning is more of an equilateral balance between awareness and action, i.e., the litigants are vigilantibus non-dormantibus jura subveniunt, i.e., the litigants are aware of the rights and laches and vigorously assert their rights as equitable relief only comes around when such conditions are uncompromised.[59] A notable example of such would be any objection relating to the usage of discretionary jurisdiction must be raised at the earliest possible occasion, as discretionary jurisdiction, once exercised unobjected, cannot be meddled with simply due to the availability of alternate efficacious remedy.[60] In Bangladesh, equity governs the rights of parties[61] and embodies discretionary equitable relief. For example, the common law courts in the country preside on matters relating to evidence, i.e., its relevancy, admissibility, granting or refusing an injunction, specific performances, amount of alimony, grant or refusal of bail, etcetera., at its discretion.[62] Furthermore, equitable reliefs hold the factor of time to high prospect notwithstanding the inclusion or exclusion of a specified time clause. It requires the completion of every agreed-upon task within a reasonable span. However, the inclusion of time constraints and the intent to treat it as the essence of a contract may displace the presumption provided such is evidenced by circumstances.[63] In Bangladesh, statutes like the Specific Relief Act of 1877, the Limitation Act of 1908 equitable grant relief. The Specific Relief Act formally makes mention of the discretionary aspect of its execution. On the other hand, the Limitation Act strives to eliminate laches and maintain ease of procedure whereby the calculation of the time is discretionary, e.g., in Akbar Ali v State,[64] it was held that working days of the court are the days on which the court officially sits that excludes all public holidays and private leaves, condonable delays supported by reason, etcetera.[65]
Limitations & Scope for Misuse
In Government of Bangladesh v Advocate Asaduzzaman Siddiqui,[66] the Apex Court held that the malafide exercise of discretionary jurisdiction attracts nullity, amounts to abuse, and is bad in law. Adding to the obiter dictum of the Apex Court, however much it is argued upon, discretion occupies a part in the various legal systems based on the recourse of subjecting it to the plethora of control.[67] The undeviating correlation between limitation and scope for abuse MUST NEVER be overlooked, as when limitation exhausts, abuse engages. Relating the previous concept to the doughnut analogy, it is safe to consider that discretion is illusory except when an opening is visible.[68] Concurring therefrom, a defined minimum standard must adhere to eliminate decisional autonomy[69] or discriminative/ prejudiced application of statutorily empowered discretionary jurisdiction.[70] Such exists under the presumption that provisions of law regulate society as a unit and that discretion is an individualized opinion susceptible to influence.[71] To address susceptibility to influence the human nature of the judges must not be ignored. Higgins & Rubin (1980) experimented on the Eighth Circuit district court judges, therein, the presumption of enforcing values on society through presiding over landmark judgements, human inclination to a particular party, urge to accumulate wealth in the form of professional accolades, political views, etcetera., were shown to relatively influence discretion.[72] Discretionary jurisdiction, when mathematically considered, represents a probability dependent on personalized overviews, with the upper limit being equity and the lower limit being due regard for the conferring statute.[73] A set of ground rules to contain the arbitrary deployment of judicial discretion proposed by Azarova were viz.
Opportunities provided to judges are based on the commitment to resolve questions according to the provisions of the law.
providing reasonable argument as to the solution of a question of law with clarity
opportunities to fill existing gaps in the law
moral and professional etiquette of the judge[74]
Somehow, discretion is always shaded under the agape criteria of good faith.[75] The pursuit of upright judging is essentially the quest for unbiassed principles,[76] i.e., sound discretion guided by law, reason and logic.[77] In those spirits, constitutional doctrines such as nondelegation and nullity for ambig
მესისხლეობა – შერიგების ტრადიციები სამხრეთ-დასავლეთ საქართველოში
No full textIn the customary law of southwestern Georgia, first of all, the criminal law draws attention, which contains very riveting traditions. Firstly, criminal law reflected customs and folk forms of punishment related to vengeance, particularly the reconciliation of enemies. In the second half of the 19th century, the common Georgian customary law operating in Samtskhe and Adjara preserved several signs of customary norms in the sphere of hostility. The functioning of customary law, in turn, was determined by the existence of this type of communal category – the avenge rule and composition system. Because the legal norms of the avenge and composition system corresponded to the customs, thus it contained the noteworthy aspects of the old social relationship.
Keywords: Reconciliation, Mediators, Alliance, Mediation court, Fraternity, Foster-father
Introduction
The custom of avenging was characteristic of almost all peoples of the world. Vendetta[1] existed in the consciousness of the people who created the states. In addition to the peoples of the Caucasus, including the mountain people of Georgia, it was typical among many peoples of the world, especially among the Greeks and Germans. The tradition of blood revenge had no less place in the legal life of primitive societies. For example, among Australians, if the husband refused to take revenge, his wife would divorce him. Its origin was related to the distant past - the early stages of human history. In particular, most scientists believe that the method of avenge originated in the pre-industrial, primitive-tribal era. It continued to exist in oligarchic - socially divided societies. Thus, the rule of avenge, which has functioned even in a heterogeneous - oligarchic society since ancient times, was reflected in the collections of laws of the world people, including Georgian legal monuments.
In the conditions of Georgian statehood and socially differentiated society, the rule of avenge got a clearly expressed class nature, i.e., In Georgian feudal law, social status was taken into account, and the price of blood was accordingly determined[2]. The existence of the custom among Georgian mountaineers, in particular, among Mtiuls, is confirmed by the "judgment" document. In the conditions of statehood, the habit of blood revenge appeared in the traditional peripheries at a time when political governing cells and, consequently, legal institutions were weakening. However, over time and in the process of epochal changes, this custom was forgotten, but in peculiar circumstances, it appeared in a modernised form.
In the customary law of southwestern Georgia, first of all, the criminal law draws attention, which contains very riveting traditions. Firstly, criminal law reflected customs and folk forms of punishment related to vengeance, particularly the reconciliation of enemies. In the second half of the 19th century, the common Georgian customary law operating in Samtskhe and Adjara preserved several signs of consuetudinary norms in a field of hostility[3]. The functioning of customary law, in turn, was determined by the existence of this type of communal category - the blood revenge rule and composition system. Because the legal norms of the blood revenge and composition system corresponded to the customs, thus it contained the noteworthy aspects of the old social relationship.
Matching terms for composition in Adjara
In Adjara, the corresponding term for composition was “Darigeba” – Edification, Exhortation. That was named the reconciliation of hostile families, kinship groups, and clans. They had older, distinguished, and authoritative persons in the blood-related union. While resolving disputed issues, they did not receive material benefits, but they were observing and interested in the daily life of the relatives themselves. Authoritative elders acted as defenders of the lineage and tried to prevent blood relatives from being unjustly oppressed by a representative of another family. Such persons behaved as conciliators, and with the heads of villages and other clans, they also appeared as mediators. Distinguished persons were called "respected men" and "leading men" in some places. These peculiar elders determined not only the matters of reconciliation of the sworn but issues of mandatory revenge too. In Adjara, at the time of vengeance, atonement and composition had sufficiently established form. To reconcile the sworn parties - several elders of the clan or village, three or five men were allocated, among whom the most influential person was responsible for solving all the issues raised in the reconciliation process[4]. According to the legal monuments, in ancient Samtskhe-Saatabago, mediators appeared as conciliators of disputing parties. The court of negotiators was the same as the court of mediators. There was a court of elders in Khevsureti - "Khevsuruli Rjuli", and its representatives were called Mebtcheni – Btcheebi (Arbiters)[5].
In the conditions of kindred, the duties assigned by custom were carried out by the heads of the family and the clan, and not by the elders of the governing body of the community, because avenge or reconciling - the composition was a legal event of a personal-legal nature and it only expressed the competence of the opposing parties. However, in the case of hereditary feud in generations, when the avenge continued permanently, when it threatened the functioning of the community as a single social organism, then, naturally, the community relied on its rights, and the problem was discussed in the deliberative body of the community. Therefore, the mediators were chosen by a general resolution of the community. In such a situation, the powers of conciliators were presented in a sufficiently expanded form. Both sides had to obey the decision of the heads of the village and community, in which the oldest members of the kinship groups - "Nogros" could also participate. In case of an objection from any of the parties, they used to end the case regardless of the will of that parties. If the sworn enemy did not agree to reconciliation, then the conciliators would forcefully put a tie around the neck of the murderer or his relative - father and brother and take him to the house of the murdered person without the permission of the victim and his relatives.
As we can see, in Adjara, when it came to murder, due to the complexity of the reconciliation process, both sides were involved in it. At the beginning of the reconciliation process, the sufferer\u27s family members did not directly participate, and the guilty party usually asked the victim\u27s friend or, in the conditions of the Muslim society, the godfather of the family - Kirva to intercede with the victim. The envoy\u27s desire was informed to the elder of the kinship group - Nogro, the leading man. In the next step of the reconciliation process, several people from both sides participated. At this stage, depending on the family name and the complexity of the problem, it was permissible to choose three to five elders from the village and, in general, the community for reconciliation. That is why it is assumed that since the reconciliation itself was a heavy process and with the consent of both parties, one of the conciliators was appointed as the leader, which should have been the head of the affected village or the related group - Nogro, based on the fact that the final result greatly depended on his authority and eloquence.
Customary law recognised different types of murder and, appropriately, in the composition-exhortation process, it distinguished intentional and negligent murders from each other. In addition, Georgian customary law distinguished the forms of murder from each other. The outcome of reconciliation depended a lot on the type of murder. That was also the case in Adjara, where there was a distinction between intentional killing and careless killing. The participation of a hired killer was also significant in the proceedings. There were cases when the aggrieved party could not take revenge on the aggressor for some reason, so they would take the appropriate kind and amount of expenses and fulfil the plan through a hired assassin. Under similar conditions, it was permissible to reconcile with the customer, but the hostility with the direct executor continued eternally. Several kinds of reconciliation and blood atonement were distinguished: 1. Negligence - Keza, 2. Kill Accidentally - when the killer would have killed another instead of one; 3. Imposition of blood on one family name; 4. Premeditated murder - when the killer committed a premeditated murder or the victim was seriously injured but did not die; 5—murder for hire - when the Avenger would hire the person to kill the enemy[6].
It is established in the literature that when one particular person was intended to be killed, and another was mistakenly killed, the completed murder and the attempted murder had importance in the reconciliation. It is also interesting here that tradition forbade the avenge in case of murder within a kin group - Nogro, and if the murder still took place - blood would be imposed on the members of the same clan. Then the problem had to be resolved by reconciliation[7].
Different forms of reconciliation in Adjara
One of the common forms of reconciliation in Adjara was Damokvreba – make related. In the late medieval Adjara, the term "Dadosteba" was also spread along with the "Damokvreba". After the murder, for reconciliation, mediators from both sides would intervene and marry a woman from the killer\u27s relatives to a relative of the assassinated. The opposite did not happen. The side of the victim would never marry a woman to the murderer\u27s side to reconcile, and if such a marriage would take place, then it would be considered a humiliation to the relatives of the killed. After the settlement, enmity and bloodshed between clans would cease. Still, in the mountains of Adjara, in the past, quarrels appeared between possible relatives by marriage, especially when a son to be married abducted a woman without her parent\u27s consent - took her by force. Usually, the abduction of a woman used to be a common custom not only in Adjara but also in other parts of Georgia and generally in the Caucasus. The rule of abduction found its reflection in the Samtskhian laws of the high Middle Ages. In the code of Beka Jakeli and her grandson - Agbugha, it is listed point by point what kind of ruling could be made subsequently such an article of law. In the code of Beka-Agbugha, Article 39 of the law states that the Kidnap of an engaged fiancee by another was not considered a crime until the wedding[8]. In such a situation, the relatives of both sides had to decide the case themselves, and the abductor had to win the heart of the woman\u27s old fiance. With this, the enmity between the families was over.
Naturally, the government\u27s attempt to prevent the vendetta between the plaintiffs can see here, and the official law opposes the customary norms for the sake of innovations. In the mountainous regions of Georgia, which is confirmed by mountainous ethnographic materials, abducting a woman was considered a violation of the rules and seemed restricted. However, the act itself was not regarded as shameful[9].
The ethnographic history of Adjara has preserved the facts of the exhortation process at the time of the abduction. If the abductor was unlucky to abduct the bride and, nevertheless, he tried to kidnap the woman again, or on the contrary, if the prosecution of the female relatives failed the abduction, then the father-in-law asked the abductor for a negotiable amount of money[10]. Disagreement - enmity arising on the grounds of kidnapping women, in most cases, ended with a settlement, and the storytellers explained that hostility was inadmissible in a community. Because of this, the community also could intervene in solving the case of the woman\u27s inaccessibility. Reconciliation was easier when abducting a woman than for raping her or other types of moral crime. This is ordinary because rape - the act of dishonouring a woman by force, was perceived as a specific physical insult. In contrast, kidnapping was perceived as a manifestation of custom, although, nevertheless, this was also included in the category of punishment.
An attractive custom in Adjara was to tie a rope to the neck of the sworn person and perform a simulation of sacrifice in the name of the murdered person. The last moment of this kind of reconciliation process was humiliating for the offender. Thus the injured party received moral satisfaction. If it were a matter of reconciling the sworn, they would tie a rope around the killer\u27s neck and walk around the house of the killed three times. Carrying a murderer with a rope around his neck three times to the home of the deceased was an imitation of a sacrifice in the deceased’s name. According to ethnographic sources, a murderer was led by an influential elder with a rope around his neck to the family of the murdered person, who knelt in front of his brothers. He would kick up the murderer and thereby violate his dignity. With the second similar option, for reconciliation, the killer was tied around the neck and carried three times to the grave of the murdered person. If the deadly enemy did not agree to reconciliation, the conciliators would tie the neck of the murderer or his relative, father, or brother to the neck and bring him to the house of the killed without agreement with the victim\u27s brothers, cousins, fathers, and uncles. Researchers of the history of law in Adjara have identified other variants of the humiliation of personal dignity in the reconciliation process. For example, when the criminal was led around the victim\u27s house by kneeling. In such cases, the victims would tie the offender to the cattle stall and put a few tufts of straw and salt, especially in abducting a woman or committing other minor crimes. In Svaneti, when the mediators reached a reconciliation agreement, the victim would enter the offender\u27s house to reconcile and extinguish the fire by pouring water on the hearth of the murderer\u27s household. There were cases when the offender begged the victim for forgiveness at the fireplace.
Begging at home was performed by the decision of the mediators and at the request of the victim, as well. According to Mikheil Chartolani, the comparison with the hearth could be of different types: coming to the fireplace with a rope tied around the neck, lying down near the fireplace, kneeling in front of the fireplace, or kneeling from the door to the fireplace, begging by kneeling on each other or lying down next to the fireplace, going around the fireplace three times with a kneeling knee[11].
The hearth, as a holy place of reconciliation, is also reflected in the oral history of the legal character of the population of the adjoining Georgian corners of Adjara, which are now in Turkey. According to one such story, culled from diaries of field materials collected at Sinope, such sacred symbols as the woman and the white scarf, the splinter, the candlestick, the lit fire, the hearth, and the fireplace are prominent in the process of reconciliation.
In almost all people, the accompanying component of the reconciliation process was a payment of compensation to the damaged family. Material compensation took place, especially during property revenge. In Adjara, when taking property revenge, they knew how to burn houses, kill cattle, and destroy crops. The crime had to be repaid with a fine. Sometimes the offender was forced to compensate the loss materially, for example, one bull for the dead bull. In the case of property revenge, when the avenger wanted to burn down the house, he would inform the family members or the relative group of the enemy - some members of the Nogro about the impending disaster by throwing a stone on the roofing of the house and giving the signal to the members of the house. Avengers chose a time when no one was home to fulfil the goal. If they did not manage to burn down the house, the Avengers would cut the corn in the garden of the rival, kill the cow, and throw down the beehive in the forest. This form of revenge excluded the killing - taking of blood, even though the ground was ready for it.
Composition - reconciliation with material compensation in the mountainous region of Adjara was at least an accompanying phenomenon of blood feuds in the past. In connection with bodily injury or murder, the accusing party would offer its demands for blood price. Even in Adjara, to equalise the "pledged blood", it was necessary to pay a definite material compensation in "Mosankleno". „Mosankleno“ was a certain material and monetary compensation during the period of revenge. One fixed norm of payment or the determination of the amount of blood price depended on the conciliators. It was taken into account intentional murder, as well as when the murdered person was guilty. Naturally, in such a case, the culpability was facilitated. When taking blood, the introduction of a certain material tax for the family of the affected party was a sign of the weakening of the blood relationship. Reimbursement of the blood price was mainly in material and monetary form. Blood relatives were paid in kind, but sworn enemies were reconciled by giving money or land and cattle. Also, they knew to hand over precious family utensils to the victims. When determining the blood price, the hierarchical status of the surname of murdered was important. That can is clear from the high medieval legal system of Samtskhe. In the Beka-Agbugha law system, the injured party was satisfied with half of the material wealth of the murderer, considering the relevant conditions that the victim was to be compensated according to his surname and honour. As Isidore Dolidze pointed out, the composition system in the monument of the law changed by the material compensation that should have been given to the victim\u27s relatives according to the name, surname, estate, and honour of the murdered person. In Khevsureti, the amount of compensation was determined by the Council of the Elderly. According to the Georgian ethnographic materials, two types of composition are established: one, when it was for the benefit of the affected family, and the other - as compensation for public violation, for the benefit of the village community. For example, according to the rules of the Svan folk law, the family that violated the rules established by the society and thereby harmed the community paid "Hibar\u27\u27 in the form of a fine for the benefit of the village and community. Based on the analysis of the Ganchineba (Judgement), a composition known as the bloodline was established, which was judged and accepted by the men of the community – Btche (Judge). The payment was made according to the relative categories, the most important of which was the tax of house rank, fraternity rank, and maternal rank, which the murderer and his relatives had to compensate by giving a certain amount of goods.
It is clear from the brought materials depicting the folk legal norms that the blood price was not so small, and it could only sometimes be afforded by one family. The close and wide circle of kinship was included in the composition. Even in the Adjara mountains, when the family of the blood debtor was unable to pay the blood fee due to the economic situation, then the family group – Nogro, as well as the whole clan and close circle, participated in paying the material compensation. Field-ethnographic sources directly indicate the nature of rights and duties between members of the kinship group in customary law, where, often, the burden of the offender was assumed by the father, brother, or cousin. Also, this is evidenced by the custom of bringing the father, brother, and cousin of the murderer to the residence or grave of the murdered person with a tied rope. The moral and material support for blood relatives was more vital among close relatives than among relatively distant separated families. But if the family did not have the opportunity to provide conciliatory goods, land, or money, and could not compensate it with the forces of close relatives, then, despite the differentiation of blood relatives according to the distance-proximity, the whole patrimonial appeared as a defender and supporter of the damaged family. In the reconciliation process, they agreed with the mediators. They met the demands of the affected family and clan, after which they paid the compensation set in favour of the affected party. One of the proofs of this point of view is similar data from different parts of Georgia. In case of wounding in Mtiuleti, the mediators would consult with the relatives and genealogical organisation of both sides - Mamishviloba and after that, they would put as many grains of wheat on the victim\u27s wound, and the family of the guilty had to give as many cows to the family of the wounded. Interestingly, in the case of material poverty, families of the small kinship group, then the kin, appeared to support the family[12].
Thus, during the bloodshed in Adjara, the mutual assistance of the kinship group members - Nogro and clan was clearly defined. However, the protection and material and moral support of cognates confirmed during the revenge sometimes took place secretly within certain limits. The family that sheltered the killer supported him, and helped him materially, could become the object of the victim himself. As a rule, the murderer should have been enabled by a relative group - Nogro. That is how enmity between individuals would grow into hostility between blood-related groups.
The cycle of customs related to mother in
MARITAL CONFLICT AND PSYCHOSOCIAL WELL-BEING OF ADOLESCENTS, PROTECTIVE AND RISK FACTORS
Get PDFThe family is the source of socialisation for the adolescent, whose main duty is to take care of the child and promote its development. When there is a conflict in the family that the parents cannot handle with their own resources, the well-being of the child is significantly affected. In order to protect the child\u27s interests and ensure his well-being, the state should create family support programs that will help the child cope with psychosocial problems in the family. Currently, family support programs are very small and inaccessible. In addition, the existing programs do not have a preventive purpose and do not mean understanding the family as a unified system, thereby questioning the effectiveness of the existing record in the law of the state\u27s obligation to care for the welfare of adolescents. The study considered it significant to determine in what cases the magnitude of the reflection of marital conflict on children increases or decreases and aimed to identify variables that interfere with the psychosocial well-being of adolescents and marital conflict. As a result of the research, the factors supporting the well-being of the adolescent in the process of marital conflict were identified. It is recommended to create a family support program focusing on the identified factors.
Keywords: Adolescent, Well-being, Family support programs
Introduction
The family is the most important link in society, which reflects the connection between the changing and developing processes of humanity and plays a decisive role in the processes of human education, value transmission, influencing interests, and socialisation. The family, in turn, determines the level of satisfaction of its members, and marital conflict poses a threat to the psychosocial well-being of family members.[1]
The conflict between husband and wife, in turn, is related to the number of stressful situations in the family: the stress of family members; the child\u27s aggression; with stress caused by the financial situation; a lack of care and attention; with the role of children as victims; with their intellectual, academic, and social life; with psychosocial changes and antisocial tendencies; with premature sexual relations; and with the decline of children\u27s academic performance.[2]
According to scientists,[3] community- and state-level family support services play a major role in reducing the risk of marital conflict and its negative consequences. Services designed to support couples in marital conflict offer a variety of counselling or therapy services to the conflicted couple and their family members and care for their well-being.[4] The higher the level of marital conflict, the greater the risk that the adolescent will develop psychological and behavioural difficulties, in which case the presence of family support programs significantly reduces this risk.[5]
According to Article 24 of the Code of Children\u27s Rights of Georgia, the parent is obliged to take care of the child and, as necessary, participate in child support measures offered by the state. For this, the state, according to the law, must create family support programs, taking into account the individual needs of the child.[6]
It was determined, as a result of research conducted in 2021[7], that there are few and/or unavailable family support programs in Georgia, and most of them only apply to cases of legal disputes between husband and wife over children. The research revealed the need to develop a program to deal with the conflict between the parents of the child, which will significantly reduce the negative reflection of the conflict on the child and find support for the parties. According to family welfare researchers[8], in order to create an effective family support program that will prevent the negative reflection of marital conflict on children, it is necessary to consider the mediating variables of marital conflict and children\u27s well-being, which change the relationship between these two variables.
The aim of this study was to identify the mediating factors of marital conflict and adolescent psychosocial well-being. The mentioned variables will form the basis for the flexible program needed to improve the psycho-emotional condition of the children of the conflicted husband and wife, based on scientific research and the practical experience of experts, and will be a kind of basis that will effectively support the psychosocial well-being of the adolescent in the process of marital conflict and will be able to prevent the reflection of harm.
Marital conflict
Parental disagreement affects the psycho-emotional state of children. It is difficult to pinpoint one specific cause of marital conflict[9]; however, according to Mosman and Falke[10], Conflict occurs when parents cannot agree on parenting approaches, time spent together, finances, and family roles. Conflict arising from any reason reduces harmony in the family, increases discomfort between family members, and manifests itself in a significant deterioration in the quality of cohesiveness, adaptability, and communication between husband and wife. Deteriorated communication, adaptability, and cohesiveness have a negative impact on the functioning of the family and the well-being of its members, in particular the children.[11]
The psychosocial well-being of adolescents
Raising and developing a child is a multi-faceted process that involves care so that the child takes place in society and has a high level of well-being. An adolescent\u27s well-being is related to psychosocial and socio-pedagogical factors, which help him identify difficulties and develop the ability to develop solution strategies. It aids in the satisfaction of needs and self-realisation.[12] The assimilation process of norms, certain systems, and values in society is a prerequisite for the well-being of the adolescent.[13]
At the age of adolescence, the adolescent becomes a person, and at this time, the family acquires special importance. At this age, the well-being of the teenager should be considered, taking into account family relationships. The family represents a standard of behaviour for the adolescent that ensures the satisfaction of his psycho-emotional and economic needs.[14] Adolescent well-being is expressed in bio-psychosocial dimensions, including material well-being, living conditions, level of education, social relationships, and self-esteem. All this poses a significant threat when there is a conflict between husband and wife, which they do not have the resources to overcome.[15]
Institutional mechanisms supporting adolescent psychosocial well-being
In 2021, we were interested in the existence of psychosocial support services in the process of marital disputes in Georgia, their content, their availability, and the degree of involvement of experts working in this field in this service. According to studies conducted,[16] the following questions were answered: what psychosocial services exist for family members in the process of marital dispute; how accessible they are; what difficulties do the parties face; and what changes does the mentioned process require?
In the first stage, the legal details of the dispute process between the spouses in Georgia and the importance of psychosocial services for the parties were analysed in the framework of the desk research. Subsequently, publicly requested documents from various institutions were analysed, and finally, expert interviews were conducted with experts working in the family, judicial, legal, and psychosocial spheres. As a result of the research, we determined:
During a legal conflict between husband and wife:
1.1. The prerequisites for the use of court mediation are not established in court; the judge decides on the use of services subjectively.
1.2. There is no recording data on the involvement of a social worker and a psychologist in declared family disputes, as well as the deadlines are given to the couple for settlement;
1.3. The court does not collect or process statistical data on which service or activity has what result or whether the court contributed to existing settlement cases.
The main difficulty of the process was identified as the lack of the number and scope of services available to the parties in the process of marital conflict; also that the existing services are focused only on intervention and not prevention of the difficulties of families involved in legal disputes, and thus neglecting the child\u27s rights to well-being and his real psychosocial needs.
According to family, court, legal, and psychosocial practitioners, it was necessary to create family psycho-education and effective services in the court and community. Increasing the number and qualifications of personnel involved in the process of marital conflict will significantly decrease the difficulties in the process.
Marital Conflict and Adolescent Psychosocial Well-Being
There are mediating variables that play a mediating and moderating role between marital conflict and adolescent psychosocial well-being.[17] Different authors emphasise different mediating variables, and all of them agree on the need to consider these variables in reducing or preventing the harm of marital conflict. Among them are:
Parenting style, which means ensuring that children\u27s needs are met and being able to promote their development. The difference between parenting styles and how strict, lazy, and/or loyal a parent is affects a child\u27s discipline, emotional state, and behavioural tendencies.[18] In the family, the child learns behavioural models, and in this case, the parent\u27s attitude becomes an example for him. The parenting style, in turn, is affected by the relationship between the couple. The more tense the relationship between parents, the more likely it is that the parent will change his attitude towards the child, which in turn affects the child\u27s well-being.[19]
Family functioning is considered a family\u27s ability to solve problems, have healthy communication between members, distribute roles, and have emotional involvement and responsibilities.[20] Of the functions of the family, the ability to solve problems and overcome conflicts is of special importance. [21] This means that if, despite the marital conflict, the current distribution of roles is satisfactory and the couple tries to find ways to resolve the conflict, then their disagreement will have less impact on the child\u27s well-being.[22]
Perception of finances refers to the availability of the family to meet all material needs as well as the perception of the family members about these needs and the ways to meet them. This implies that people who perceive their income as low have less psychosocial well-being than those whose perception of material resources is more positive. [23] Access to certain resources, including financial resources, becomes relevant during the parental conflict. It was found that the higher the perception of the family\u27s financial situation, the less negative the impact of marital conflict on the children. [24]
Psychosocial support refers to the safety of family members and the belief that they will be supported and accepted. Adults who feel supported feel better about themselves, even when there is conflict and disagreement between husband and wife.[25] In the case when the husband and wife cannot deal with the existing conflict, and there is no access to psychosocial services, there is a high probability that the parents will close in on themselves and ignore the child\u27s need for support.[26]
Gender, age, education, and other factors influence whether the impact of marital conflict on children is intensified or reduced, as well as the children\u27s gender, age, education, ethnicity, and the relationship between parent and child.[27]
Research findings
The conclusion of the research is the need to develop a program supporting children in the process of marital conflict, which, according to relevant literature and empirical studies, will significantly reduce the negative reflection of the conflict on the child and make the process less stressful for the parties.
Based on this, we can conclude that the following factors support the psychosocial well-being of adolescents in marital conflict: unchanged parenting style, family functioning, financial situation, and feeling of support.
Taking into account the results of the research, it is necessary to create a family support program that is focused on the research and modification of parenting styles, supporting and promoting healthy family functioning, promoting financial health, and providing psychosocial support.
Bibliography
Georgian language literature:
Kitoshvili , (2021) The role of psychosocial services in the divorce process, Кезж 02(59), ISSN 1512-1801, (Georgian);
Kitoshvili N., (2021) Access to psychosocial services in David\u27s divorce process, Erovnui Defense Academy, conference collection (Georgian);
Kitoshvili , (2021) Studying the role of the judge in reducing the stress caused by David\u27s divorce, Intellect 01 (68) (Georgian);
Shatberashvili, N., (2011), Social Welfare Policy: A Social Work Perspective, for Masters of Social Work, Intellect Press (Georgian)
Foreign language literature:
Agnew, R., White H., R., (1992). “An Empirical Test of General Strain Theory.” Criminology 30, https://doi.org/10.1111/j.1745-9125.1992.tb01113.x,
Dominick, C., (2018) Inter-parental Relationship Quality and its effects on Children, A literature Review to Support Analysis And Policy, Ministry of Social Development, Te Manatu Whakahiato Ora, ISBN: Online 978-1-98-854117-4;
Emery R., E., (1982), Interparental conflict and the children of discord and divorce. Psychological Bulletin, 92(2), 310–330, , https://doi.org/10.1037/0033-2909.92.2.310;
Epstein, N. B., Baldwin, L. M., Bishop, D. S. (1983). The McMaster family assessment device. Journal of Marital and Family Therapy. 9, (2), 171-180, https://doi.org/10.1111/j.1752-0606.1983.tb01497.x;
Family Justice Review, (2011) Final Report, Published on behalf of the Family Justice Review Panel by The Ministry of Justice, the Department for Education and the Welsh Government;
Gaafoor, A., Kurukkan, A., (2014) Construction and Validation of Scale of Parenting Style, Guru Journal of Behavioral and Social Sciences, Vol.2. Issue 4, ISSN: 2320-9038;
Gunindi, Y., Tazel Sahin F., Demiracioghlu H., (2012) Functions of the Family: family Structure and Place of residence. Energy Education Science and Technology, Part B: Social and Education Studies, Vol. 4(1): 549-556, https://www.researchgate.net/publication/236620003;
Homrich A., Glover M., M., White A., B., (2005), Program Profile: The Court Care Center For Divorcing Families, Family Court Review, 42(1), 1111/j.174-1617.2004.tb00639.x;
Maccoby, E. E., & Martin, J. A. (1983). Socialisation in the Context of the Family: Parent-Child Interaction. In P. H. Mussen, & E. M. Hetherington (Eds.), Handbook of Child Psychology: Vol. 4. Socialization, Personality, and Social Development (pp. 1-101). New York: Wiley, DOI: 4236/psych.2015.66066;
Miner, J., Schofield, Th., S., (2016) Mediation and Moderation of Divorce Effects on Children’s Behavior Problems, Journal of Family Psychology, J Fam Psychol, 1037/fam0000043;
Mistry, R., S., Elenbaas, L., (2020) It’s All in the Family: Parents’ Economic Worries and Youth’s Perceptions of Financial Stress and Educational Outcomes, Journal of Youth and Adolescence (2021), Springer, https://doi.org/10.1007/s10964-021-01393-4;
Mosmann, C., & Falcke, D., (2011). Marital conflicts: causes and frequency. SPAGESP[online]. 2011, vol.12, n.2, pp. 5-16, ,ISSN 1677-2970;
Nurse A., R., and Thompson P., (2009) Collaborative Divorce: A family-Centred Process, Blackwell Handbook of Family Psychology, Ed. By Bray, J., H., and Stanton, M., Wiley-Blackwell, (Chapter 32) A John Wiley & Sons, Ltd.Publications, ISBN: 978-1-405-16994-3;
OECD (2009), Compare Child Wellbeing Across the OECD, Doing Better for Children, OECD ISBN 978-92-64-05933-7;
Olson, D., H., (2000) Circumplex Model of Marital and Family Systems, Journal of Family Therapy, The Association for Family Therapy 2000. Published by Blackwell Publishers, pp. 144-167;
Kerig, P., K., (1998) Moderators and Mediators of the Effect of Inter-Parental Conflict on Children’s Adjustment, Journal of Abnormal Child Psychology, Vol.26, No.3, pp 198-212, doi: 10.1023/a:1022672201957;
Pruett M., K., and Barker R., (2009) Children of Divorce: New Trends and Ongoing Dilemmas, Wiley-Blackwell Handbook of Family Psychology, Ed. By Bray, J., H., and Stanton, M., Wiley-Blackwell,(Chapter 31) A John Wiley & Sons, Ltd.Publications, 1002/9781444310238.ch31;
Platonov Yu, P Social Psychology of Behavior, Study Guide, Pmter 2006, p. 66 (Russian);
Salia M., The Role of School and Family in Adolescent Socialization, Intercultural Communications, Ilia Chavchavadze National Library of the Parliament of Georgia 2008 #5, Tbilisi, ISSN 1512-4363 (Georgian);
Web Sources:
Code of Rights of the Child, (2019), available at https://matsne.gov.ge/ka/document/view/4613854?publication=2 (Georgian).
Footnotes
[1] Gunindi, Y., Tazel Sahin F., Demiracioghlu H., (2012) Functions of the Family: family Structure and Place of residence. Energy Education Science and Technology, Part B: Social and Education Studies, Vol. 4(1), p. 549, : https://www.researchgate.net/publication/236620003
[2] Pruett M., K., and Barker R. (2009), Children of Divorce: New Trends and Ongoing Dilemas, Wiley-Blackwell Handbook of Family Psychology, Ed. By Bray, J., H., and Stanton, M., Wiley-Blackwell, (Chapter 31) A john Wiley & Sons, Ltd.Publications, p.463, DOI: 10.1002/9781444310238.ch31
[3] Agnew, R., White H., R., (1992). “An Empirical Test of General Strain Theory.” Criminology 30, https://doi.org/10.1111/j.1745-9125.1992.tb01113.x Family Justice Review (2011) Final Report, Published on behalf of the Family Justice Review Panel by The Ministry of Justice the Department for Education and the Welsh Government.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217343/family-justice-review-final-report.pdf ; Nurse A., R., and Thompson P., (2009) Collaborative Divorce: A family-Centred Process, Blackwell Handbook of Family Psychology, ed. By Bray, J., H., and Stanton, M., Wiley-Blackwell, (Chapter 32) A john Wiley & Sons, Ltd.Publications, ISBN: 978-1-405-16994-3; Pruett M., K., and Barker R., (2009) Children of Divorce: New Trends and Ongoing Dilemas, Wiley-Blackwell Handbook of Family Psychology, ed. By Bray, J., H., and Stanton, M., Wiley-Blackwell,(Chapter 31) A john Wiley & Sons, Ltd.Publications, 10.1002/9781444310238.ch31
[4] Homrich A., Glover M., M., White A., B., (2005), Program Profile: The Court Care Center For Divorcing Families, Family Court Review, 42(1), p. 145-151, DOI: 10.1111/j.174-1617.2004.tb00639.x
[5] Nurse A., R., and Thompson P., (2009) Collaborative Divorce: A family-Centred Process, Blackwell Handbook of Family Psychology, Ed. By Bray, J., H., and Stanton, M., Wiley-Blackwell, (Chapter 32) A john Wiley & Sons, Ltd.Publications, p. 477-482, ISBN: 978-1-405-16994-3.
[6] Code of Rights of the Child, (2019), available at https://matsne.gov.ge/ka/document/view/4613854?publication=2
[7] Kitoshvili, N, (2021) The role of psychosocial services in the divorce process, Кезж 02(59), ISSN 1512-1801; Kitoshvili, N, (2021) Access to psychosocial services in David\u27s divorce process, Erovnui Defense Academy, conference collection; Kitoshvili, N, (2021) Studying the role of the judge in reducing the stress caused by David\u27s divorce, Intellect 01 (68).
[8] Miner, J., Schofield, Th., S., (2016) Mediation and Moderation of Divorce Effects on Children’s Behavior Problems, Journal of Family Psychology, J Fam Psychol, p.1, DOI: 10.1037/fam0000043
[9] Kerig, P., K., (1998) Moderators and Mediators of the Effect of Inter - parental Conflict on Children’s adjustment, Journal of Abnormal Child Psychology, Vol.26, No.3, p.208, doi: 10.1023/a:1022672201957.
[10] Mosmann, C., & Falcke, D., (2011) Marital conflicts: causes and frequency. Rev. SPAGESP [online]. 2011, vol.12, n.2, p.5-8, ISSN 1677-2970.
[11] Emery R., E., (1982), Interparental conflict and the children of discord and divorce. Psychological Bulletin, 92(2), p. 311, https://doi.org/10.1037/0033-2909.92.2.310; Maccoby, E. E., & Martin, J. A. (1983). Socialization in the Context of the Family: Parent-Child Interaction. In P. H. Mussen, & E. M. Hetherington (Eds.), Handbook of Child Psychology: Vol. 4. Socialization, Personality, and Social Development, pp. 85. New York: Wiley, DOI: 10.4236/psych.2015.66066; Olson, D., H., (2000) Circumplex Model of Marital and Family Systems, Journal of Family Therapy, The Association for Family Therapy 2000. Published by Blackwell Publishers, pp. 163-164.
[12] Platonov, JU. P., (2006), Social Psychology of Behavior, Study Guide, Piter, p. 66.
[13] Salia M., (2008) The Role of School and Family in Adolescent Socialization, Intercultural Communications, Ilia Chavchavadze National Library of the Parliament of Georgia 2008 #5, Tbilisi, ISSN 1512-4363.
[14] Shatberashvili, N., (2011), The Politics of Social Welfare: A Social Work Perspective, for Masters of Social Work, Intellect Press, pp. 46-47,
https://digitallibrary.tsu.ge/book/2022/Jun/readers/shatberashvili_socialuri_ketildgeobis_rideri.pdf
[15] OECD (2009), Compare Child Wellbeing across the OECD, Doing Better fro Children, OECD, ISBN 978-92-64-05933-7.
[16] Kitoshvili, N, (2021) The role of psychosocial services in the divorce process, Кезж 02(59), ISSN 1512-1801; Kitoshvili, N, (2021) Access to psychosocial services in David\u27s divorce proce
მორატორიუმის ღონისძიება რეაბილიტაციის რეჟიმის წარმოებაში
No full textThe debtor, who is willing to implement the rehabilitation regime, needs proper support in order to maintain and protect insolvency, increase the liquidity of the entity, etc. The moratorium measure ensures all of the aforementioned in insolvency law, in particular in the rehabilitation regime. The use of the moratorium measure in the rehabilitation regime should not be understood solely in favour of the debtor. It is a means of protecting the interests of creditors along with the interests of the debtor. The law distinguishes between mandatory and additional moratorium measures. As soon as the court issues a ruling on opening the rehabilitation regime, certain measures of the moratorium are automatically put into effect, and in certain cases, based on the court’s decision, it is possible to apply additional measures of the moratorium. Consequently, the moratorium measure requires the court’s involvement and caution. When applying the moratorium, the court must act in accordance with the principles of justice and proportionality. The use of the moratorium measure in the rehabilitation regime can be considered an important means of implementation of one of the important principles of the law, “ – Maintaining and increasing the insolvency and business value as much as possible”.
Keywords: Insolvency; Rehabilitation; Moratorium.
Introduction
As we know, in 2020, the Parliament of Georgia adopted a new Law, “On Rehabilitation and Collective Satisfaction of Creditors”. The legislator set the implementation of the rehabilitation regime as the primary goal of the law, which is the best way to protect the interest of both the debtor and the creditor.
The basis of the debtor’s insolvency/expected insolvency is a financial crisis from which no business entity is immune. Therefore, to overcome the crisis, the debtor needs some legal support. In insolvency, in particular, in the rehabilitation regime, a moratorium measure appears as such, which ensures the suspension of obligations to be fulfilled by the debtor for a certain period of time. The moratorium measure cannot be understood only as a means of realising the interests of the debtor. It is also a means of protecting creditors’ interests for the implementation of the rehabilitation regime.
This article is interesting and innovative in the sense that the moratorium measure within the framework of the new law is discussed in it.
In order for the work to be of a proper standard, such types of research as historical research, comparative, narrative, descriptive methods, etc., are used in it.
The purpose of the research topic is to study and discuss the moratorium measure in the field of insolvency, in particular, in the rehabilitation regime.
The subject of the study is the study of the current law of the Georgian legislation on insolvency, in which the institution of the moratorium falls.
The object of the research is to study the institution of a moratorium in the example of Georgia and Britain.
The Law of 2007 on Insolvency Proceedings was considered to be rigid with regard to moratorium measures and did not allow for the application of moratorium measures that were balanced and tailored to a particular debtor. It was also noted that the previous law was characterised by a lack of legal regulation.[1] Accordingly, it became necessary to organise it in a new way, which was implemented within the framework of the new law.
Moratorium Measured as a Free Breathing Space for the Debtor
The moratorium measure, in its turn, gives the financially distressed but still viable debtor the opportunity to prepare for rehabilitation, seek new investments or implement other rescue measures. During the moratorium, creditors cannot take any legal action against the company without approval (i.e. permission) of the court.[2] A moratorium protects a financially distressed company from taking legal action until a rehabilitation plan is approved or the company’s affairs are settled.[3] By using the moratorium cover, the debtor is given an opportunity to improve liquidity, including by postponing the fulfilment of due obligations, which, in turn, increases its ability to rehabilitate and is one of the determining factors for successful rehabilitation.[4]
The most important feature of the rehabilitation regime in Great Britain is the moratorium, which is called a kind of “freeze”.[5] Here, in order to take advantage of the moratorium measure, it is necessary to submit an application to the court and produce documents.[6] The moratorium comes into effect from the date when an application is made to the court for the appointment of a practitioner or when a notice of appointment of a practitioner is served during an out-of-court proceeding. In Great Britain, a moratorium halts all legal proceedings and enforcement of judgments already made and provides security without court permission or practitioner consent.[7] According to the applicable law of our country, the moratorium measures are automatically put into effect as soon as the court issues a ruling on the opening of the rehabilitation regime, and in certain cases, it is possible to use additional moratorium measures based on the court’s decision. The law determines everything imperatively. Let’s discuss each of them individually.
Moratorium Measures Automatically Put into Effect
According to the law, the following measures of the moratorium will be automatically put into effect: the ongoing enforcement measures against the debtor’s property shall be suspended, and the initiation of new enforcement measures will not be allowed; Enforcement measures provided for by the Tax Code of Georgia (tax liens, mortgages, etc.) and the accrual/payment of fines and penalties shall be suspended, and the initiation of new enforcement measures shall not be allowed, except for the measures implemented for the purpose of paying off the tax debt incurred after the ruling made on admissibility of the application for insolvency and opening of the rehabilitation or bankruptcy regime by the court in accordance with the procedure established by the Tax Code of Georgia, and many others.[8] When moratorium measures are directly established by law, they are called statutory moratoriums, the so-called: Oxygen space. For effective negotiation, it is necessary for the company to have free breathing space, which is provided by the moratorium measure.[9] Considering all of the above, the following can be said: the moratorium is crucial in order to give the debtor the breathing space he/she needs to achieve rehabilitation goals. In rehabilitation, a moratorium gives businesses the time and freedom they need to find logical solutions and ways to move forward. It depends on the debtor what way he/she will find. For example, it can be the sale of assets and the satisfaction of creditors with the money received from the sale, finding a partner who, in exchange for the company’s share, will settle the liabilities with the amount paid by him/her, or finding a buyer through which the company’s products will be purchased, etc. The debtor has absolute freedom as to what measures to take to fulfil obligations. When a debtor is facing a financial crisis, rehabilitation is the best way to avoid pressure from creditors. And the purpose of the moratorium and its legal regulation is crucial to achieving the goals of rehabilitation.
In Great Britain, a moratorium is considered a debtor-in-possession procedure, which means that the company is still controlled by management. However, a licensed insolvency practitioner known as a “monitor” shall be appointed to provide supervision and assurance to creditors. His/her duty is to monitor the company’s current activities and the probability of its survival. If he/she considers that the result is unlikely to be achieved, it is his/her duty to terminate the moratorium measure.[10] The latter is established by the applicable law of our country, according to which the court is authorised to make a decision on the cancellation of certain measures of the moratorium based on a substantiated statement of the creditor, debtor, manager, or another interested person.[11] The law also establishes certain cases when the moratorium measure can be revoked.
Additional Measures of the Moratorium
As for the use of additional measures of the moratorium, it requires a substantiated statement of the creditor, debtor, manager, or other interested person on which the court will make a ruling.
According to the ruling made on the basis of additional measures, it is possible: 1. To prohibit the debtor from returning the items in his/her possession that were transferred under leasing, conditional title reservation, or another basis; 2. To restrict or prohibit the debtor from disposing of the property, including its alienation or encumbrance, from suspending the operation of the norms of the agreement concluded by the debtor, which obliges the debtor to dispose of the property, etc.[12]
If the automatically implementable measures of the moratorium are aimed at the interests of the debtor and to give him/her the opportunity, to save him/her, the additional measures of the moratorium ensure the protection of the interests of the creditors so that satisfaction of the creditors’ demands does not become more difficult or worse, impossible. And the third clause, which limits the choices of the debtor’s counterparties, can be considered a means of protecting the interests of both parties.
Moratorium Measure in accordance with the Act on Insolvency Proceedings
According to the applicable law, a separate chapter is devoted to the moratorium measure. As mentioned, the 2007 law was distinguished by the scarcity of its legal regulation. The moratorium measure is not even mentioned by this name in the 2007 law. Accordingly, its definition does not exist, nor does the standard that the new law proposed by regulating it. The Law on Insolvency Proceedings only indicated that it was prohibited to secure debts taken before the court ruling on acceptance of application on insolvency, payment of debts, and accrual/payment of interest, penalty, and fine (including tax) were suspended.[13] The mere existence of this norm in the law on such an important institution is an unequivocal basis for stating that the 2007 Law was behind modernity; it was necessary for it to develop appropriate norms and then implement them. The disorder of these and many other issues can be considered as the basis for adopting a new Law, “On Rehabilitation and Collective Satisfaction of Creditors”.
Conclusion
Based on the summary of everything, we can conclude that the applicable Law “On Rehabilitation and Collective Satisfaction of Creditors” gives the debtor an absolute opportunity to secure his/her rights through the rehabilitation regime, achieve the goals and overcome financial difficulties, primarily through the moratorium measure.
Based on the law and after analysing everything, it can be said that through the implementation of the rehabilitation regime, the debtor has such interests as a continuation of his legal existence as an entrepreneurial entity - in the registry of Entrepreneurs and Non-entrepreneurial legal entities, maintaining his/her business, where he/she carries out entrepreneurial activities and which is equipped with a number of organisational and structural units. The moratorium, the existence of which is very important because it allows the debtor to breathe by “pausing debts” and helps the debtor to ensure all the mentioned. For the debtor, in addition to personal material interest, it is interesting to maintain the existing relationship with the creditors and to continue it in the future, which is ensured by the rehabilitation regime and the moratorium institution. The rehabilitation regime is also important because it gives the debtor an opportunity to think about the future, enter into new legal relationships, conclude new agreements, acquire new partners, create new trade relations, think about the establishment of a branch office, etc. And for this purpose, it is necessary for him/her to be able to use the moratorium measure.
Bibliography
Used literature:
Adam Plainer, Jones Day Gouldens Bucklersbury House, Corinne Ball, Jones Day. Comparison of Chapter 11 of the United States Bankruptcy Code and the System of Administration in the United Kingdom;
Ashurst, Corporate Insolvency and Governance Act: The Moratorium. LONDON, 26 JUN 2020;
Amisulashvli N., Bashinuridze K., (2019) Guidelines for Regulated Agreements, USA International Development Project “Governance for Development”;
Lorraine Conway. Corporate insolvency framework: proposed major reforms. House of Commons Library;
Lorraine Conway. Corporate insolvency framework: proposed major reforms. House of Commons Library;
Meskishvili K., Batlidze G., Amisulashvili N., Jorbenadze S., (2021) Basics of conducting insolvency proceedings according to the Law of Georgia “On Rehabilitation and Collective Satisfaction of Creditors”, Publisher: © GIZ, Tbilisi;
Vanessa Finch, (2009) Corporate Insolvency Law Perspectives and Principles, Second Edition.
Normative material:
Law on Insolvency Proceedings;
Law “On Rehabilitation and Collective Satisfaction of Creditors”;
Explanatory card on the draft of Georgian Law “On Rehabilitation and Collective Satisfaction of Creditors”, 2020;
Corporate Insolvency and Governance Act 2020
Footnotes
[1] Explanatory card on the draft of Georgian Law “On Rehabilitation and Collective Satisfaction of Creditors”, 2020.
[2] Lorraine Conway. Commons Library analysis of the Corporate Insolvency and Governance Bill [HC2019-21]. House of Commons Library. p. 23. https://researchbriefings.files.parliament.uk/documents/CBP-8922/CBP-8922.pdf
[3] Lorraine Conway. Corporate insolvency framework: proposed major reforms. House of Commons Library. p. 6. https://researchbriefings.files.parliament.uk/documents/CBP-8291/CBP-8291.pdf
[4]Meskishvili K., Batlidze G., Amisulashvili N., Jorbenadze S., (2021) Basics of conducting insolvency proceedings according to the Law of Georgia “On Rehabilitation and Collective Satisfaction of Creditors”, Publisher: © GIZ, Tbilisi. p. 33. http://lawlibrary.info/ge/books/GIZ_Insolvency-reader_2021.pdf
[5] Vanessa Finch, (2009) Corporate Insolvency Law Perspectives and Principles, Second Edition. p. 22.
[6] Corporate Insolvency and Governance Act 2020, Chapter 2, A3.
[7] Adam Plainer, Jones Day Gouldens Bucklersbury House, Corinne Ball, Jones Day. Comparison of Chapter 11 of the United States Bankruptcy Code and the System of Administration in the United Kingdom.
[8] Law “On Rehabilitation and Collective Satisfaction of Creditors”, Article 55 [last viewed on April 11, 2023].
[9] Amisulashvli N., Bashinuridze K., (2019) Guidelines for Regulated Agreements, USA International Development Project “Governance for Development”, p. 21. https://pdf.usaid.gov/pdf_docs/PA00TZGW.pdf
[10] Ashurst, Corporate Insolvency and Governance Act: The Moratorium. London, June 26, 2020. https://www.ashurst.com/en/news-and-insights/legal-updates/ciga---the-moratorium/
[11] Law “On Rehabilitation and Collective Satisfaction of Creditors”, Article, 58.1 [last seen on April 11, 2023].
[12] Law “On Rehabilitation and Collective Satisfaction of Creditors”, Article, 57.1 [last seen on April 11, 2023].
[13] Law on Insolvency Proceedings, Article 21.3 [last seen on April 11, 2023]
IMPOSING A SENTENCE IN CASE OF CUMULATIVE CRIMES: (Legislative Tendencies in Georgia)
Get PDFFollowing the principles laid in foundation of Criminal Code adopted in 1960 Georgian legal scholars have always been very cautious to issues of criminal punishment. Remembering bloody consequences of soviet repressions, they always tried to follow the principle of proportionality. So did the legislature. Criminal Code of Georgia adopted in 1999 was largely based on that principle. Yet, in 2004 Georgian Parliament declared policy of zero tolerance which led to number of legislative innovations. Rules on imposing a sentence in case of cumulative crimes were substantially affected. Despite high expectations in just eight years it became apparent that something went wrong. In 2012 newly elected Parliament faced a necessity to declare a significant amnesty for vast number of prisoners and rethink the policy overall. Present article attempts to analyze these legislative tendencies through the prism of theories of goals of punishment. Author argues that above mentioned issues were mostly consequence of superficial approach to the subject. The chase for statistics made government less mindful towards fundamental categories of criminal punishment. Namely, the goal of restoration of justice was almost entirely sacrificed for the sake of general prevention while special prevention was to a great extent misinterpreted as well. In 2013, thanks to further legislative innovations, general radicalism was largely overcome, but there is still much room for improvement.
Keywords: punishment, aggregate sentence, retribution, special prevention, general prevention
Introduction
For past twenty years, legislative approach to criminal punishment has significantly changed at least twice in Georgia. First in 2004-2006 following newly proclaimed concept of zero tolerance Georgian legislature adopted number of laws that aimed to make legal consequences for committing a crime a lot more severe. Naturally provisions that regulated imposing a sentence in case of cumulative crimes were affected a lot. Population of Georgia, quite tired of many years of criminal activity, initially praised the pursuit. Nevertheless the approach was so one-sided and radical that some authors even refer it as a sign of authoritarianism.[1] Despite high expectations in just eight years newly elected parliament, dealing with the consequences of earlier praised zero tolerance policy, had to declare a significant amnesty for vast number of prisoners and rethink overall approach. In 2013 Parliament adopted a massive legislative package that included subject of present article. It seems that legislature aimed to overcome the radicalism so inherent to zero tolerance policy. In addition to rethinking existing provisions some new ones were introduced. For example a new type of punishment such as house arrest was introduced[2] that up to this day serves as a good alternative to imprisonment.[3]
What was the reason for such a massive turn around in just eight years? Answer may lay deep in the fundamental categories of punishment. May be while chasing statistics of reduced crime government disregarded something essential? In order to answer that question present article aims to analyze above mentioned legislative tendencies and ascertain whether they were in compliance with the goals of punishment well praised by legal science and acknowledged by legislator himself, namely: restoration of justice, special prevention of crime and general prevention of crime.
1. Methodological Base
In order to fully and consistently analyze the subject of present article it is necessary to be equipped with a proper methodological base for the analysis. Otherwise, the consistency of argument may be easily lost and discussion may become pointless. The subject of present paper will be analyzed through the prism of goals of punishment which are: restoration of justice (retribution), special prevention of crime and general prevention of crime. This choice was made because of two main reasons. First, goals of punishment are central to entire concept of criminal law. Hence the approach that assists reaching those goals has a good chance to be considered acceptable. On the other hand, the approach that hampers reaching those goals is most likely to be rejected. So the goals of punishment could be a good orientation point for sentencing in general and imposing a sentence in case of cumulative crimes in particular. Plus, the above mentioned goals of punishment are not only well appreciated by criminal science but acknowledged by the legislature as well. Namely, section 1 of article 39 Criminal Code of Georgia directly indicates, that: “The goal of a sentence is to restore justice, prevent repeated commission of a crime and resocialise the offender.“
Ideas about goals of punishment went through a long and uneasy way from primitive revenge to modern elaborate concept.[4] For a large period of time revenge on the offender has been the main goal of criminal punishment. According to theories developed by Kant and Hegel, Punishment should have compensated for criminal\u27s culpa. Punishment should have served fairness, rather than social good.[5] These are often referred as absolute theories. Methodologically they are based on morality, or to be exact on the idea of moral law. According to these theories, criminal act constitutes a breach of moral law, therefore punishment is a fair retaliation which follows that breach. Any kind of social goal or practical expediency of punishment is absolutely rejected and the issue is solved purely based on morality. Since the offender puts his will against the will of society and thereby breaches the law, the punishment to which he eventually gets sentenced is the mean of restoration of what he has breached. Hegel also rejects the concept of deterrence through the threat of punishment, as well as the idea of re-education of criminal. He believes that since the criminal has a free will, threatening him or punishing him with the goal of re-education would mean to reduce him to animal. Kant directly refers to Talion principle − "An eye for an eye" – and argues that a criminal must be punished since he deserves punishment due to what he has committed.[6] Therefore absolute theories of punishment are frequently referred as theories of retribution. Complete rejection of utilitarian goals means that a criminal must be punished purely because it is fair to punish him, nevertheless whether it is socially expedient or not.[7] In this regard absolute theories are oriented towards past, towards the fact that has already happened.[8]
Despite its popularity the idea of pure retribution was opposed pretty strongly by some scholars. For example, Beccaria consistently argued why sentencing based purely on retribution is wrong. Finally, he points out that since revenge is no more the primary goal the punishment must have an exact proportion to the magnitude of the evil that criminal has committed, make the strongest and most lasting impression on the mind, but to be the least painful to the sensibilities of the unfortunate.[9]
Farther evolution of legal science conditioned development of relative theories of punishment, which considered practical expediency as its main goal. Namely they pointed that punishment must be oriented on benefiting society instead of revenging on the perpetrator. Therefore, relative theories are frequently referred as utilitarian theories of punishment. Unlike absolute theories relative theories are methodologically based on expediency instead of morality.[10] Social benefit is achieved not through retribution but rather through prevention of crime.[11] In that regard unlike absolute theories relative theories are oriented towards future, towards prevention of what has not yet been committed.[12] Crime prevention itself is divided into special and general prevention.
The concept of special prevention was developed by List. He argued that main goal of punishment is to influence the criminal in right way that prevents him from committing yet another offence.[13] Evolution of this thesis brought to life very important provisions such as alternative measures to criminal punishment, parole, etc.[14]
The concept of general prevention belongs to Feuerbach. It is oriented on larger part of society rather than the offender himself. Main priority is to influence and deter potential criminals from committing crime through threat of punishment. At the same time general deterrence is reinforced by application of punishment to the actual offender. It serves as an example for those who think about committing a crime but have not developed the actual criminal intent yet. Such prevention is often referred as negative general prevention.[15] On the other hand, positive general prevention is oriented towards spreading respect and loyalty to law among society instead of fear of punishment. In this regard the application of punishment to the actual offender is intended to ensure trust to integrity and efficiency of legal order in society.[16]
Each of the above mentioned theories has been subject of a fair amount of criticism, including some well-reasoned.[17] The core of the problem was that each of them concentrated on particular issue and failed to grasp the subject entirely.
Subsequently, the goals of punishment were divided into non-utilitarian and utilitarian goals.[18] Pros and cons of all of them are being discussed up to this day. Although subsequently absolute and relative theories were combined and unified theories of punishment were developed. Those theories acknowledge both non-utilitarian and utilitarian goals at the same time. The core idea is that neither retribution, nor special, nor general prevention can guarantee the necessary result on its own. It is extremely important to combine the best ideas of all three into one and thus balance out each other\u27s weaknesses.[19] First attempts of such combination proceeded pretty painfully.[20] It is understandable since at first sight non-utilitarian and utilitarian goals of punishment seem to contradict to each other.[21] On the one hand, the state must punish the offender, retaliate, take revenge on him, because he deserves that. On the other hand, it must show concern for the criminal, mitigating the punishment if possible, in order to use a chance for rehabilitation, if one still exists. Actually, these goals only seem to contradict each other. In fact they create dialectical unity and cooperate with each other. Hälschner once noticed that although punishment must serve multitude of goals, its nature is not determined by one or another of them, not even majority of them. It is only determined by one and only absolute goal – justice, since it is truly fair and automatically serves all the relative goals.[22]
Interestingly, the analysis of the theories of goals of punishment made the necessity of legimetrical approach even more apparent. The idea of a balance between morality and expediency which legimetry insists on is useful for solving number of issues and as it turns out issues of punishment as well. Absolute theories praised retribution and ignored social benefit of punishment since they were based purely on moral grounds. That was the problem since approach based entirely on morality was much less beneficial to society and authors of relative theories capitalized on it. They viewed crime prevention as a possible good that society could gain by punishing a criminal. So, they claimed that the approach to the punishment must expedient in the first place. The supporter of unified theories went even farther. They proposed that neither fairness nor expediency is enough if a balance between them is not well-calculated and that’s exactly what legimetry stands for.[23]
2. Legislative Tendencies
In order to answer the question asked in the introduction of present article it is necessary to analyze three phases of evolution which the subject went through: the original provisions of Criminal Code of Georgia (prior to 2006), provisions introduced in 2006 as a part of amendment package largely dictated by zero tolerance policy and provisions introduced in 2013. All three variants must be analyzed as mentioned above through the prism of goals of punishment, set by theories of criminal law and acknowledged by legislator himself.
2.1. Prior to 2006
Article 59 of Criminal Code of Georgia adopted in 1999 contained three types of imposing sentence in case of cumulative crimes: absorption, partial addition and full addition (aggregate sentence):
If offender had committed two or more less serious offences more severe punishment would absorb less serious punishment(s). Interestingly, this provision was amended in 2000 and the new regulation provided that partial and full addition of punishment (aggregate sentence) were also allowed, but final sentence could not exceed 5 years.[24]
If offender had committed two or more serious or particularly serious crimes the punishments imposed for each crime individually would have been partially of fully added up. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 25 years.
If offender had committed less serious and serious crime or less serious and particularly serious crime, absorption as well as partial addition and full addition were allowed. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 20 years.
Clearly the approach was much detailed. It enabled judge to take in account all important circumstances of criminal case and to apply most appropriate sentence. This is exactly that individualization of punishment stands for.[25] Properly applying individualization is the most precise way of achieving proportionality of punishment. Article 59 distinctly pushed forward that pursuit and was oriented on differentiation according to the crime categories: less serious crimes, serious crimes and particularly serious crimes.[26]
In terms of restoration of justice, these original provisions were pretty elaborate. As mentioned above, proportionality in this regard means that the offender must get the punishment corresponding to the evil that he has committed. That is why individualization of punishment is so important.[27] The judge must evaluate the level of severity of damage that the offence has caused and only then impose a proportionate (fair) sentence that offender deserves.[28] Original provisions would give the judge necessary freedom to individualize the punishment especially after 2000 amendment, since it allowed all three variants. At the same time there was an upper limit of five years to prevent arbitrary judgement in case if judge was too severe to the defendant. But there were risks as well. There was no limit for quantity of sentences that could absorbed by the most severe one. One (the most severe) sentence could absorb infinite number of less severe ones. For example, one offender who had committed one offence could be sentenced to 4 years of imprisonment; Another offender who had committed 7 offences could be sentenced to just 5 years of imprisonment since the most severe sentence had absorbed all others. Hence 6 more offences would make just one-year difference. So yes, in such extreme case there was a room for unfairness since not every criminal could get exactly what he had deserved.
In terms of special prevention this approach was also well-based. Special prevention as mentioned above is achieved by influencing the convict in right way to prevent repeated committing crime. In this regard it is essential to keep balance between fairness and expediency. If the punishment is too mild, it may make the convict feel like he got away too easily, so called “impunity syndrome”. On the other hand, an overly severe punishment may hinder the resocialization as well. It depends largely on willingness of the convict to re-establish himself as liable and responsible citizen and find his way back to society. If that very society presented by judge in this particular case is unfair and unjust to him, what on the earth can make him to be filled with such willingness? A rhetorical question. The original provisions of article 59 were at least at some extent were based on these considerations.
In terms of general prevention there were some risks in these provisions. As mentioned above, there was no limit for quantity of sentences that could absorbed by the most severe one. That could be less productive in terms of threat of punishment. Since an offender who had committed series of less severe crimes could have been sentenced to just five years of imprisonment, such “easy fate” could have encouraged potential criminals to elaborate their criminal intent.
To sum up, the original (1999) provisions of Article 59 of Criminal Code of Georgia were as far as possible oriented on all three goals of punishment. Although not without risks, restoration of justice was well taken into account. Special prevention of crime was also carefully considered. While in terms of general prevention the regulations contained some risks, they were well justified overall.
2.2. 2006 amendment
In 2006 in the midst zero tolerance policy Parliament of Georgia voted for an amendment package that included article 59 of Criminal Code of Georgia. According to new regulation in case of cumulative crimes the punishment had to be imposed for every crime individually and then added up (aggregate sentence). So, neither absorption nor even partial addition were available to the judge anymore. At the same time article 50 of Criminal Code of Georgia was also amended and possible term of imprisonment imposed as a final sentence was increased from 20 to 30 years.[29] Although in 2010 a new amendment was adopted that made partial addition possible, but that worked only as an exception rather than norm.[30]
In terms of restoration of justice these regulations were on the one hand pretty fair. The offender would have got as many sentences as many offences he had committed. So, he would get exactly what he deserved. If he had committed one offence, he would get one sentence. The number of sentences would be multiplied in accordance to number of offences committed. But such “fairness” was delusional. As Lekveishvili mentions, several less serious crimes could be punished more seriously than one particularly serious crime. [31] That’s true. For example, if a person had committed theft by illegal entry into a dwelling place for three times, he would inevitably face a punishment by imprisonment for a term of 4 to 7 years[32] multiplied by three, in total – 12 to 21 years of imprisonment. A person who had intentionally killed someone thus committed an intentional killing (homicide) would face imprisonment for a term of 7 to 15 years.[33] Was that fair? Rhetorical question again.
In terms of special prevention, it was least appropriate. The goal of re-socialization of the criminal was almost ignored. As mentioned above, it is crucial to influence the convict in right way. As the theory of social disintegration suggests, by committing a crime the offender becomes separated and finds himself in confrontation with legally organized society.[34] Thus the connection link between the person and the society is lost. Resocialization itself is nothing more than re-establishment of that link. The willingness of the convict to take responsibility for his actions is essential in this regard. The convict needs to have a hope that he will be able to fix past mistakes and start new life by re-establishing that link. The state must achieve this through implementing complex of measures. But if the convict was previously subjected to such unfairness by the society as described above in example of three thefts and one homicide it is hard to imagine a measure efficient enough to convince him to become responsible member of society once again.
Additionally, 2006 amendment made individualization of punishment to large extent impossible. As the principle of individualization suggests the judge must impose the sentence proportional to the needs of resocialization of the offender. That’s not only scientific point. As article 53 directly indicates that a stricter sentence may be imposed only when less severe sentence fails to achieve the goal of the sentence.[35] That’s simply because excessive punishment is not only unfair but also becomes counterproductive in terms of resocialization. So, the judge on the one hand was obliged impose a proportional punishment, taking in account all the mitigating and aggravating circumstances of criminal case. On the other hand, he lacked the power to apply absorption or partial addition no matter how necessary it was. Very same contradiction was apparent in case of imposing conditional sentence and more lenient sentences than provided for by law.[36]
In terms of general prevention, 2006 amendment made criminal code relatively more effective. In particular negative general prevention was achieved with great efficiency. No doubt, since criminals were getting severe long term sentences, the threat of punishment was becoming more and more apparent to potential criminals. In terms of positive general prevention, the approach was also efficient since by punishing offenders, the state made integrity of legal order more apparent to citizens. The question is – at what cost?
To sum up, legislative approach applied in 2006 amendment largely disregarded restoration of justice permitting an inherently unjust and unfair punishment. Special prevention of crime was also ignored for the most part since convicts will to re-socialize was actually degraded and the judge was stripped of ability to properly individualize the punishment. Overall, the main requirement established by the unified theory of punishment w