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THE ROLE OF INTERNATIONAL ORGANISATIONS IN THE DEVELOPMENT OF INTERNATIONAL LAW: AN ANALYTICAL ASSESSMENT OF THE UNITED NATIONS
Get PDFInternational organisations play a vital role in shaping and implementing international norms and standards, contributing to the development of international law. This paper focuses on the United Nations (UN) as a prominent international organisation and examines its role in developing and implementing international law. Specialized entities within the UN, such as the International Court of Justice (ICJ), the United Nations General Assembly (UNGA), and the International Law Commission (ILC), have played significant roles in the development, codification, and implementation of international law. The UN serves as a platform for ongoing dialogue, identifies emerging challenges, formulates international legal and policy instruments, provides mechanisms for peaceful settlement of disputes, and collaborates with other international and regional organisations. However, this paper also acknowledges the inherent challenges and shortcomings of the UN and explores proposals for UN reform to address these issues, enhance its influence, and better fulfil its overarching purpose. Through an analytical assessment of the UN’s role and influence on international law, this paper aims to provide insights into the functioning of international organisations and their impact on shaping global legal norms.
Keywords: international law, international organisations, United Nations, United Nations General Assembly, International Law Commission, international norms and standards
Introduction
International organisations play an important role in shaping international norms and standards,[1] addressing issues that transcend national boundaries and promoting collective solutions on the global stage.[2] These organisations are established by states through multilateral treaties, acquire distinct wills separate from their member states,[3] and derive their competence from the treaties that establish them.[4] While subject to domestic laws, they also possess legal personality within the jurisdictions they are headquartered.[5]
The increasing number of international organisations reflects states’ recognition of the importance of interdependence and collaboration in addressing global challenges through the establishment of international standards.[6] There are approximately 250 to 350 international organisations exercising public authority through legislative and regulatory actions,[7] adopting various decisions.[8] International organisations can be universal or regional in scope, representing groups of countries or institutions that share similar values, cultures or objectives. They may also be members of other international organisations.[9]
This paper provides a concise analysis of the historical development of international organisations and their impact on the development and implementation of international law. It explores the functioning of these organisations in the realm of public international law, which encompasses the regulation of state relations as well as the behaviour of individuals, corporations, and non-governmental organisations (NGOs). The primary focus is on the United Nations (UN) and its pivotal role within the international legal framework. The paper critically evaluates the contributions of specialized UN bodies, the UN General Assembly (UNGA), the International Law Commission (ILC), the International Court of Justice (ICJ), and the UN Security Council (UNSC) to the development, codification and implementation of international law. The paper also addresses the challenges faced by these bodies and proposes reforms for the UN to effectively address these challenges and enhance its functioning in promoting and upholding international law.
The Evolution of International Organisations: A Brief Overview
International organisations have been a longstanding presence in the field of international law. Although states have historically held primary responsibility within the realm of international law, governments are increasingly recognizing the potential benefits of ceding certain aspects of their sovereign authority to international Organisations committed to addressing global issues.[10] Since the mid-20th century, international organisations have gained international legal personalities and become significant subjects of international law, albeit with fewer rights and responsibilities than states.[11] This section will present an overview of the historical evolution of international organisations, tracing their development from temporary assemblies or conferences to permanent international organisations with enduring international legal frameworks.
In the late eighteenth and nineteenth centuries, several powers started to establish forms of cooperation that went beyond bilateral treaties and diplomatic efforts.[12] According to Klabbers, while traces of international organisations can be found in different historical periods, such as the ancient Greek “amphictyonic councils”, the late-medieval Hanseatic League, and early examples like the Swiss Confederation, it was not until the nineteenth century that international organisations resembling those we see today were formally established.[13] Klabbers also argues that the Congress of Vienna (1814-1815) holds significant importance in the realm of international relations. It marked the creation of a modern political and legal framework for Europe following a period of instability characterized by upheaval and conflict after the French Revolution.[14] During this time, states began to recognize the inadequacy of the existing system in effectively addressing the emerging conflicts between them.[15]
Initially, the mandates of these organisations were limited and narrow in scope. The establishment of river commissions, like the European Commission of the Danube in 1856, indicates that the primary area requiring international cooperation was transportation and communication[16]During this time, private individuals also took the initiative to create organisations with the goal of addressing global issues.[17] In the year 1840, the establishment of the World Anti-Slavery Convention took place,[18] while in 1863 the International Committee of the Red Cross[19] was established.[20]
International organisations also experienced significant growth in various domains beyond transportation and communications. For example, the establishment of the International Office of Public Health in 1903 focused on addressing health-related issues. Additionally, early precursors to contemporary international organisations in the field of economics emerged during this period, such as the Metric Union (1875), the International Copyright Union (1886), the International Sugar Union (1902), and the International Institute for Agriculture (1905).[21] Some of these institutions, albeit with altered names and based on distinct constituent agreements, continue to operate today. For instance, the International Institute for Agriculture now operates under the name FAO (Food and Agriculture Organization).[22]
According to Klabbers, public international law has undergone a gradual shift from being a “law of co-existence” to a “law of cooperation”, as demonstrated by the growing prevalence of international organisations.[23] This suggests that international organisations are evolving into mechanisms that foster cooperation among states, rather than solely defining and limiting their respective spheres of influence.[24] Max Huber, a renowned Swiss international lawyer, wrote in 1910 that states entered into treaties for two primary motives: the pursuit of self-interest and the pursuit of common or shared interests.[25]
However, the significant growth of international organisations occurred following the conclusion of the First World War.[26] The Treaty of Versailles was signed on June 28, 1919, marking the formal conclusion of World War I.[27] The League of Nations, established under the Treaty of Versailles on January 10, 1920, was the first international governmental organization with broad authority. Its primary purpose was to provide a platform for resolving conflicts between states. However, despite its establishment, the League of Nations did not gain widespread popularity, attracting only 63 member states.[28] Ultimately, the organization was officially dissolved after the outbreak of World War II.
The Growth and Influence of International Organisations
Traditionally, international law has primarily focused on governing the relationships between states.[29] Oppenheim, who is considered the founder of modern international law, defined international law as “the body of customary and convention rules which are considered legally binding by civilized States in their intercourse with each other”.[30] He further noted that “international offices” are established to implement treaties that establish international unions.[31] Therefore, the priority of states extends over international organisations, as these organisations are “derivative creatures” that derive their existence and powers from the states that established them.[32] As correctly pointed out by Klabbers, “only states can go to war. Only states can conclude treaties. Only states can proclaim territorial waters”.[33]
In fact, it has been argued that international organisations were not intended to exert influence on the global community. When these organisations were first established, they were not granted international legal personality, as it was not deemed important or necessary.[34] International organisations were only intended to interact directly with member states “not with third states, not with other international organisations, and not with the citizens of their member states either”.[35] Prior to the intervention of the ICJ in 1949, International organisations lacked international legal personality.[36] Within a decade of the 1949 ICJ advisory ruling there has been a complete change in the position.[37] For example, the charters of international organisations now contain clauses conferring legal personality or some measure thereof,[38] and various regional instruments, contain general provisions recognising the legal personality of international organisations.[39]
According to Alvares, the expansion and influence of international organisations on international law and policymaking has for example, aided in the formulation, promotion of treaties and conventions and their implementation by states.[40] They play a dual role in the process of shaping global norms and rules: they participate as unique actors in decision-making and provide the essential structures of authority for other participants.[41] As subjects of international law, international organisations are also governed by Jus cogens norms, customary international law, and general principles of law.[42] As we progress through this section, it will become clear that international organisations, particularly the UN, have significantly influenced the sources of international obligations, and the key actors involved in international law-making.
International organisations have had a significant impact on the development of international law,[43] effectively contributing to the establishment of a global constitutional system.[44] According to Henkin, international organisations “represent new laws at its birth, for it is itself a child of law”.[45] For instance, the Charter of the United Nations (UN) and its specialized agencies and other international organisations have played a crucial role in shaping international law. The World Health Organization (WHO), the Organisation for Economic Co-operation and Development (OECD), and the International Labour Organization (ILO) are among the organisations that have contributed to the significant transformation of international law’s sources, actors, and processes over the past century.[46]
The United Nations and the Development of International Law
On June 26, 1945, the United Nations (UN) Charter was adopted at the conclusion of the United Nations Conference on International Organizations in San Francisco. The Charter serves as a codification of major principles governing international relations, ranging from “sovereign equality of States to the prohibition of the use of force in international relations”.[47] The primary missions of the UN is to maintain peace and security, promote economic and social development, uphold human rights, and provide platforms for state dialogue.[48] The UN Charter, comprising 111 articles including the preamble, outlines the rights and responsibilities of member states. It also delineates the roles and responsibilities of the UN’s six principal bodies.[49] The Charter emphasizes the importance of peaceful settlement of international disputes and grants authority to the Security Council (UNSC) to uphold international peace and security.[50]
Since its establishment with an initial membership of fifty-one states,[51] the UN has undergone significant development, becoming a diverse and multidimensional global institution with a current membership of 193 nations.[52] The UN has positioned itself as a global constitutional organisation, striving to safeguard and uphold an optimal world order.[53] Article 103 of the UN Charter exemplifies this aim by stipulating that in case of a conflict between member states’ obligations under the Charter and any other international agreement, the obligations under the Charter “shall prevail”.[54] Numerous experts in international law recognize the UN as a crucial international organisation for the maintenance of peace and security.[55]
The UN Charter’s fundamental principles and its evolution, including amendments made in 1963, 1965, and 1973,[56] have had a profound impact on the codification and progressive development of international law. The ICJ plays a crucial role in providing a platform for peaceful dispute settlement, interpreting treaties, and offering advisory opinions. The UNSC is also instrumental in the maintenance of international peace and security. The opinions of qualified commentators and the work of the International Law Commission (ILC) further contribute significantly to the ongoing development of international law. In addition to the work of the United Nations General Assembly (UNGA), which we will examine further in the following section. These various components collectively shape and promote the principles and regulations governing the international community.
Research indicates that the current composition of the UNSC, which bears the primary responsibility for upholding international peace and security, is considered anarchic and presents an inadequate representation of the global community.[57] Additionally, the Council’s ability to take decisive legal action during crises is often hindered by political agendas and national priorities among the five permanent member states (P5), thereby impeding the adoption of legally binding resolutions to address international conflicts. For example, one study highlights the Council’s inability to effectively respond or intervene in ongoing global conflicts and crises, such as the Russian annexation of Crimea and war with Ukraine.[58] It has been demonstrated that the UNSC’s ambiguous and discretionary powers are prone to abuse, resulting in violations of fundamental rights of individuals and states.[59]
As a result, some scholars oppose the UN Charter’s recognition as a global constitution.[60] Rao, for instance, emphasizes that “the United Nations has not been conceived as a world government, nor could transform itself into one”.[61] The inability of UN bodies to effectively impose their decisions on members and the absence of any judicial review mechanism for their unlawful actions are almost universally regarded as significant constitutional issues.[62] In a similar stand, Tomuschat argues that “the Charter is nothing more than the constitution of the international community [...] unrivalled by any other international instrument”.[63]
Furthermore, the UN Charter is often described as a “rigid” constitution, which has led to a limited number of amendments since its establishment. The only amendments to date were the expansion of the UNSC in 1965 and the expansions of the United Nations Economic and Social Council (ECOSOC) in 1970[64] and 1971.[65] The complexity of the procedure is detailed in Article 108, which requires a “a vote of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two-thirds of the Members of the United Nations, including all the permanent members of the Security Council”.[66] This provision contributes to the difficulty of amending the UN Charter. As such, when a single permanent member exercises its veto power, the amendment procedure is effectively impeded or blocked.[67]
However, there have been calls for the reform of the UNSC, suggesting a need for its amendment.[68] Proposals to amend the UN Charter, particularly those related to expanding the UNSC permeant state membership, encounter significant obstacles due to the absence of unanimous agreement among the P5 member states. Notably, the United States, the Russian Federation, and China have yet to reach a consensus on this issue.[69] These nations express reservations about the potential risks associated with both expanding the Council’s membership and maintaining the current state, as they believe it could impact the stability of the UN.[70] Nevertheless, it is vital to reform the UNSC to enhance its legitimacy and effectiveness. It is also the entity responsible for upholding international peace and security. Broadening the Council’s composition could contribute to strengthening its authority, particularly considering that it has remained unaltered since 1965, despite substantial changes in the international landscape.[71]
Notwithstanding its limitations, the UN Charter has garnered support from numerous experts in the field of international law. Macdonald, for instance, described it the “the most comprehensive framework of cooperation in the history of international relations”.[72] The Charter’s primary objective is to establish a permanent platform for peaceful resolutions and multilateral diplomacy, making it the only comprehensive international Charter.[73] Furthermore, the UN has played a significant role in setting international human rights norms and standards. This is evident through the inclusion of human rights references in the UN Charter,[74] as well as the adoption of resolutions, declarations, multilateral human rights treaties, and monitoring mechanisms aimed at promoting and monitoring human rights situations in member states. Additionally, the UN Charter supports the development of regional organisations to complement the work of the UN. Chapter VIII of the Charter, specifically Articles 52-54, provides the constitutional basis for the participation of regional organisations, alongside the Security Council, in maintaining international peace and security.[75]
The Role of UN Specialized Bodies
As this study indicates, the UN possesses specialized technical bodies that play a crucial role in the negotiation and adoption of legally binding instruments, such as treaties, conventions, agreements, and directives.[76] The majority of international treaties and conventions established by the UN incorporate monitoring mechanisms to ensure the implementation of the respective legal instruments. These mechanisms often include reporting requirements for the parties involved and generate conclusions and/or recommendations from the monitoring bodies.[77]
For example, within the framework of the Universal Periodic Review (UPR), the UN Human Rights Council (HRC), an intergovernmental organisation established by the UN General Assembly (UNGA) through resolution 60/251[78] on March 15, 2006, examines the human rights records of all 193 UN Member States.[79] These processes possess investigative or quasi-judicial characteristics, such as the HRC’s special procedures for addressing human rights situations or violations, as well as the communications procedures of UN human rights treaty bodies.[80] The HRC holds significant importance as an intergovernmental organisation as it has created a public platform for the discussion of contentious human rights issues, involving the participation of States and human rights non-governmental organisations (NGOs).[81] While the conclusions and recommendations of the HRC and other international human rights treaty bodies are not legally binding, they exert a substantial influence on shaping and promoting international human rights norms and standards.[82]
As such, according to Higgins the HRC “has championed the protection of human rights defenders and tackled human rights situations at the national level”.[83] By actively promoting international human rights standards, the HRC can be seen as a critical element of the international legal system. Its efforts contribute to the development, enforcement, and promotion of human rights principles globally.[84]
In the following section, we will explore how the ICJ, as the primary judicial organ of the UN, interprets international law. This includes its recognition of the legal validity of United Nations declarations and treaties. We will also discuss some of the challenges that the ICJ encounters in its work.
The Role of International Adjudications
O’Connell and VanderZee assert that courts and tribunals have played a significant role in international law since the mid-seventeenth century, coinciding with the emergence of modern international law and the establishment of the state system.[85] During this period, these judicial bodies were primarily immersed in theoretical debates concerning the nat
პირობით ვადამდე გათავისუფლება, როგორც სასჯელისაგან გათავისუფლების სპეციალური მექანიზმი თანამედროვე ქართულ სამართალში
No full textThe presented article is dedicated to one of the special mechanisms of release from punishment in modern Georgian law – parole, it discusses the legal problems of using the benefit provided by this law, which is based on a deep analysis of practice and a small amount of scientific research, since the issue has not been thoroughly researched and has rarely been the subject of scientific research interest. The debate on the conditional release mechanism as an essential and necessary tool was initiated by the unfavourable state of the regulatory legislation, the existence of a heterogeneous practice on the part of the court, and the scarcity of modern Georgian juridical literature regarding the mentioned concept. This article aims to understand the parole mechanism in Georgia and in the example of some foreign countries, which will make the scientific research process even more interesting and diverse. It also aims to compare, evaluate and synthesize the results obtained from further research, including the mistakes of their usage in practice and the development of scientifically based recommendations to eliminate the mistakes in the parole regulations. Formal-logical, historical, formal-legal, dogmatic, comparative-legal, descriptive and systematic methods are used in researching the problem posed in a separate chapter of the article. The conclusions, provisions, and recommendations mentioned in the article can be used to improve the qualifications of the people interested in this topic and to find practical aid for the employees working in the field.
Keywords: parole, judicial practice, alternative to prison sentence, standard of decision justification.
Introduction
In the wake of the liberalization of state policy, based on which man was considered the highest value, the purpose of punishment was determined not to inflict pain but to resocialize, restore justice and prevent new crimes. A person should be a “goal” and not a means of achieving the goal.[1] Accordingly, executing the punishment should not cause suffering. Alternatives to the punishment should be sought to reduce the pain. In some cases, it is possible to stop reacting to the crime altogether.[2] In the case of imprisonment, parole can be considered one of the best means of reducing the pain caused by the punishment in modern Georgian law, which is an essential legal opportunity for the beneficiary to be motivated, in the post-sentence period, to be entirely focused on the resocialization process and as a result to hope to use this mechanism effectively. Even though the special mechanism of release from this sentence does not have a very long history in Georgia, a considerable period has passed since its introduction, and the changes made during this period have raised many question marks, especially regarding the proper functioning of the parole institution.
The current reality in Georgia - the unfavourable state of domestic legislation and the presence of non-uniform court practices - clearly emphasizes the problem’s urgency. Based on this, it is of great interest to find out the nature and extent of conditional release, not only in the example of Georgia but also in the example of some foreign countries, as well as the analysis of mistakes made in practice in scientific research. To achieve the goal of the research, the following tasks have been formulated: to study the opinions of scientists and to achieve the goal of the research by answering the questions, at the same time, to examine the experience of foreign countries and make recommendations in terms of adjusting/improving the current legislation.
When talking about the scientific novelty of the topic, the following should be emphasized:
This article is the first attempt at a complex study of the research topic and represents the first monographic study;
The article will formulate a position on the following issue: to what extent it is possible to consider the issue of conditional release of a convicted person based on a petition filed by a legal representative;
The article will analyze the point of view regarding the exceptional rule of consideration of parole issue;
A position will be proposed regarding the introduction of a legal norm regarding the rule of grace period calculation;
It will be assessed how appropriate it is for the local Council to release the person who has already benefited from the benefits provided by the law;
It will be analyzed whether only the excess/quantity of positively or negatively assessed criteria constitutes a basis for making a positive or negative decision on unconditional and automatic parole;
It is analyzed to what extent an incentive measure against the convict is a special circumstance after the refusal of parole, which will allow the Council to consider the mentioned issue without the 6-month term, etc.
A brief historical overview of the origin and development of parole as a special mechanism for release from punishment
Imprisonment, prison overcrowding and prison population growth are significant problems for the criminal justice system, especially for the institution’s administration in terms of both human rights protection and effective management of penal institutions.[3] This problem prompts the state to consider effective release policies to limit or reduce incarceration rates. Such initiatives are based on the “front door” or “back door” strategy, which involves reducing the number of convictions caused by the increase in the use of alternative punishments (“front door” strategy) and increasing the number of parolees (“back door” strategy).[4] The institution of parole is one of the most effective and constructive measures to prevent reoffending, which provides for the planned, supervised reintegration of the offender.[5]
In addition to the above, it can also be said that parole is one of the types of non-custodial punishment, but also a form of incentive for the convict, which allows the beneficiary to leave the penitentiary a few months or years before the end of the sentence, and the release motivation helps the convict in rehabilitation programs during the sentence. To be resocialized through inclusion and to refrain from illegal activities after leaving the penitentiary.
A previously unknown legal model - parole was established in 1847 by the French A. Bonneville de Marchangie, which originally meant releasing a convict after serving a certain period of his sentence, subject to satisfactory behaviour in the future. The mentioned definition is in the criminal legislation of almost all countries with some minor changes. In this respect, Georgia is not an exceptional case. Four parole systems have been changed in Georgia. Until 2006, the director of the penitentiary institution presented the personal case of the convicts to the court. Since 2006, this function was taken away from the directors of the institution and transferred to a commission created in the Department of Corrections, which performed a kind of “filter” function, reviewed the case of all convicts who served the minimum sentence required for parole and made a decision on which case was presented to the court for final consideration and decision. to receive In this case too, the court had the final say. In 2009, the issue of parole was considered by the Permanent Commission. As for local councils, since 2010, they have dealt with the issue of conditional release of convicts. In addition, a permanent commission acted as a controlling link for the Council. In particular, he imposed an obligation to submit a report on the activities performed to the permanent commission once every three months and to supervise their activities. The function of the permanent commission was particularly noteworthy: to consider the cases of those convicts who were refused parole during the consideration of the local councils and to make a different decision from the local councils, which was a superior legal force, and the person was subject to immediate release. Since 2014, the permanent commission has been canceled, and the Council has become an administrative body.[6] Based on this, four stages of changes can be distinguished as follows:
Until 2006, the director of the penitentiary institution presented the case of the convicts to the court according to the territorial conviction;
Since 2006, the directors of the penitentiary institution have been deprived of the right to submit petitions. A permanent commission was established in the Penitentiary Department as an intermediary link between the court and the convict. Based on Article 68 of the Prison Code, convicts had the right to petition the Permanent Commission. The latter assessed certain circumstances and decided to submit to the court for parole;
In September 2009, this parole model was also abolished and replaced by the Permanent Commission of the Ministry of Penitentiary, Probation and Legal Assistance of Georgia. In this case, the competence to consider the issue was shifted from the department to the ministry level, with the difference that the issue was discussed and the final decision was made by the standing commission, not the court;
From October 1, 2010, a new prison code came into force, which radically changed the system in force in the country and created local councils, which were tasked with reviewing and deciding on the cases of convicts. i.e. The judicial circle dropped out of the given process, it retained only the appellate function.
Since 2018, convicts have been divided according to the risk of danger, and an important change has been made in the Prison Code. Under current law, local councils will no longer consider parole for high-risk offenders.[7] This circumstance is a “filter” that allows local councils to be more efficient and focused on public safety.
The parole system in our legislation is not automatic, as the legislation mixes automaticity with discretionary parole.[8] The prerequisite for considering the issue of parole is that the convicted person has served the grace period stipulated by the law, which depends on the category of the crime, the age of the convicted person, the crime committed during the probationary period, and others. This is confirmed by the relevant legislative norms, in particular, Article 72 of the Criminal Code[9] and Article 95 of the Juvenile Justice Code[10] stipulate the minimum terms of the sentence to be served, at which time the convicted person will have the opportunity to use conditional release, and not the guarantee that he will be released without parole. No such legal reservation in nature would oblige the local council, the authority dealing with the specified issue,[11] to replace the unpaid part of the sentence with parole after serving the grace period and automatically release the beneficiary. In practice, there are often such cases when, together with the convicts and the defenders of their interests, they think that if the person deprived of liberty has served the mentioned term, the authorized administrative body is obliged to take further action in terms of release, which, as mentioned, is completely inconsistent with the content of the provisions of the applicable legal norms.
There is a logical parallel to this topic, the question of how the concession period is determined and whether there is a legal record that directly determines the relevant rules for calculating the period. If we take a look at the legislation, we will see that this issue is not regulated at all, and this often causes problems in practice, especially in cases where there are deductions according to the sentence, in particular, when the time of arrest and imprisonment and the counting of the sentence started from the moment of actual arrest, the calculation in relation to this matter is carried out by the employees of the special accounting department of the penitentiary institution in two ways, one part first subtracts the sentence to be served from the calculation and then determines the actual term of service, and the other part subtracts the calculation after determining the actual term, and this creates a different situation, since The time is different and these two methods determine completely different periods. For there to be no place for the claims of persons deprived of their freedom in relation to the calculation, non-uniform practice and, to some extent, confusion, it is advisable to write a corresponding legal norm which will regulate the mentioned problems.
The extent to which a person with the right to appeal to local councils in case of conditional release can be the legal representative of the convict has often become a subject of dispute from the side of scientists and practitioners. If we carefully read and analyze Article 42 of the Prison Code[12] We will see that only the convicted person can enjoy this right. Neither based on a warrant nor a power of attorney, a petition should be requested from the penitentiary institution to consider the above-mentioned issue by presenting a document confirming the representation so that it is possible to discuss the conditional release of the convicted person. The rule of consideration of the issue would be a direct reference to the circle of authorized persons in the relevant norm.
When considering the issue of parole, the local councils are in charge “On approving the procedure for consideration and decision-making of the issue of parole from serving a sentence by the local councils of the state sub-departmental institution - Special Penitentiary Service included in the system of the Ministry of Justice of Georgia” approved by order of the Minister of Justice of Georgia dated August 7, 2018 N320 In accordance with the criteria established by Article 13 of the Rule:
a) Nature of the crime - when evaluating the mentioned criterion, attention should be paid to the severity of the crime committed by the person, under what circumstances the crime was committed, as well as whether the crime was committed during the period of probation;
b) The behaviour of the convicted person during the serving of the sentence - when evaluating the mentioned criterion, attention should be paid to how many and what kind of disciplinary, administrative and incentive measures were applied to the convicted person during the serving of the sentence, as well as, specifically, for what kind of action such a decision was made; Attention should also be paid to the information about the institution of imprisonment, the daily schedule of the institution, the fulfilment of the duties stipulated by the legislation of Georgia and the observance of the legal regime of the institution during the period of serving a sentence by the convict;
c) The fact of the convicted person committing a crime in the past, conviction - when evaluating the mentioned criterion, attention should be paid to the number of times, the severity and the type of crime committed. Also, what kind of crime, what severity, and how many times he was convicted;
d) Family conditions - when evaluating the mentioned criterion, attention should be paid to the relationship of the convicted person with his family members, whether he has minor children, other family members who are unable to work, the material condition of close relatives, etc.;
e) The personality of the convicted person - when evaluating the mentioned criterion, attention should be paid to the attitude of the convicted person to the crime committed, to the employees of the institution and other convicts, information about the participation in social activities during the period of serving a sentence, whether it requires special supervision by the management of the institution and other important issues that provide an opportunity to evaluate the personality.[13] The assessment of convicted people is carried out for each criterion separately, and a reasoned decision is made based on the analysis and reconciliation of already assessed criteria. The given criteria make it possible to analyze the risk factors, which will determine the extent to which society is at risk of committing a repeated crime from the person who will be released on parole. Here, the fact cannot be left out of attention that, on August 7, 2018, the Minister of Justice of Georgia on the review and decision-making process of the issue of conditional release from serving a sentence by the local councils of the special penitentiary service, a state sub-departmental institution included in the system of the Ministry of Justice of Georgia. Article 13 of Order N320 does not explain each assessment mark in detail in terms of content or defines a circumstance relevant to the relevant criterion. When evaluating the behaviour of the convict, a relevant circumstance may be - the number, severity, nature and content of disciplinary punishments - why the said measure was used, including whether a new disciplinary violation was committed during the period of serving another punishment; Incentive measures and all the information related to the behaviour of the convict during his stay in the penitentiary institution and others. This kind of reference on the part of the decision-making body largely determines the observance of the standard of justice.
The subject of interest in the research process was the analysis of such a case in relation to the evaluation criteria, how the council should assess the legal status of the convicted person when the established factual circumstance is the lack of conviction of the convicted person and the existence of facts of committing a crime in the past by this person. The guiding criterion for a local council is not only a current conviction but also a past offence, which means that the council is empowered to assess the fact that a crime has been committed in the past, even when the conviction has been overturned. According to Article 79, Part 6 of the Criminal Law Code, an overturned or cancelled conviction is not taken into account when deciding the issue of a criminal impact measure. When making a decision on the issue of conditional release from serving the sentence. Dismissal or removal of conviction does not change the fact of committing a crime in the past, therefore, this circumstance should not cause the board to take into account the said factual circumstance in combination with other factual circumstances.
It’s crucial to address the exception to the 6- month grace period after parole denial. According to Article 42, Part 7 of the Prison Code, if the board decides to refuse parole from serving the sentence, the petition on the same issue can be reconsidered only after 6 months unless the term of the sentence to be served does not exceed 6 months or /and there is a special circumstance. Consideration of the conditional release of a convicted person from serving his sentence is mandatory once every 6 months. If the term of the sentence to be paid does not exceed 6 months, the council will consider the issue of conditional release of the convicted person from serving the sentence based on the written application of the convicted person.[14] It is acceptable to consider what the specified record means – “special circumstance”. Not a single legal act, like the Prison Code, contains a list of special circumstances or any kind of definition which would allow the local council to consider the petition of the convicted person in violation of the established term. That is, the concept mentioned in the 7th part of Article 42 of the Prison Code – “special circumstance” is only an evaluative category. I think it is necessary to make appropriate changes in the Prison Code and to explain the “dead record” of the given norm, which will contribute to the development of practice in this direction. One of the special circumstances can be considered the case when the court invalidates the decision made by the local council and after investigating and evaluating the circumstances relevant to the case, issues a new individual administrative-legal act regarding the conditional release of the convict. In this case, the local council should no longer wait for the 6 months established by the law to pass after the refusal and is obliged to execute the court’s decision. In relation to the special circumstance, it is also important to consider whether the incentive measures applied to the convicted person after his request was not met constitute a legal basis that would allow the local council to consider the petition of the beneficiary in violation of the requirements of Article 42, Section 7 of the Prison Code. Of course, the dynamics of the development of positive behaviour of the convicted person after the refusal of parole is welcome by the local council, although the circumstance that the convicted person was encouraged does not represent such a special case that can be considered in its content, firstly because such a case will have many times place both for this person deprived of liberty and in the case of another convicted person, and the second is because it is less possible for the convicted person to carry out such a rare case that distinguishes him from other convicted persons due to individual circumstances. In such a case, it is expected that there will be a purposeful and not thought-out manifestation of positive behaviour, therefore, in relation to the given issue, the members of the Council should base their decision on a qualified assessment of objective and subjective circumstances. I think that the discussion will help those interested in the above-mentioned concept to develop the process of scientific research further and expand the list of special circumstances.
Court analysis of practice in relation to the issue of parole
In the present chapter, t
EXAMINING THE KARA-SU TREATY AND THE TURANI CORRIDOR FROM THE PERSPECTIVE OF INTERNATIONAL LAW: THEIR IMPLICATIONS FOR IRAN AND THE CAUCASUS SECURITY
Get PDFThe strategic area of Kara Su in the northwest of Iran was one of the areas where there was a dispute between Iran and Turkey regarding ownership, and it has yet to be investigated in any re- search. The importance of this area is due to the fact that the Re- publics of Azerbaijan and Armenia connect Iran and Turkey. The Ottoman government, Iran\u27s most important Western neighbour, signed the first and second Erzurum treaties1 with Iran to settle territorial disputes, but the territorial disputes with Iran persisted. Today, the importance of the Kara Su Corridor for Iran is twofold regarding Turkey\u27s plan to build the Turano Corridor. Based on this, it is necessary to examine the two countries\u27 historical territorial disputes following the collapse of the Ottoman Empire and the formation of the new Republic of Turkey, as well as the issues and measures that led to the separation of a region of Iran known as Kara Su. The goal of this study is to examine the Karabakh and Tur- ani Corridor crises, as well as their relationship with the interests of the region\u27s countries, particularly Russia, China, and Iran, and ask why such a plan could become the basis for causing a major crisis in the Caucasus region.
Keywords: Kara-Su, Iran, Caucasus, Turani, Corridor, International law
Introduction
The Aras River was designated the primary criterion for distinguishing the border between Iran and Tsarist Russia in the Treaty of Turkmen Chai. Since Tsarist Russia had sovereignty over Mount Ararat and the area known as Igdir (to the west of Iran\u27s territory in the area of Small Ararat at the time of the Turkmen Chai Treaty\u27s conclusion in Iran), and the Aras River did not flow in this area either, the Kara-su River flowed from source to mouth. The connection to the Aras River was determined as the beginning of the borderline between Iran and Russia, and the Aras River was determined as the borderline for the rest of the border after the connection of Kara-su to Aras.
The border protocol of the Turkmen-Chai Treaty was drawn up one year after the treaty\u27s conclusion, and border signs were installed based on this protocol. The Kara-su region faces Armenia to the north, Iran to the south, Azerbaijan\u27s Nakhichevan to the east, and Turkey to the west. This small 3.5-kilometre narrow strip, which was a part of Iran before 1310, today threatens more than 700 kilometres of Iran\u27s transit route in the South Caucasus.
When the Nagorno-Karabakh ceasefire agreement was signed between Armenia and Azerbaijan on November 9, 2020, there were rumours of Turkey and Azerbaijan establishing a project called the Torani Corridor in this area. As a result, NATO could reach the northern borders of Iran and the western borders of China and thus pave the way to reach the southern borders of Russia and create an energy corridor towards Europe to weaken the activism of Iran, Russia, and China. Consequently, it is obvious that Iran, Russia, and China will not allow geopolitical changes in Armenia\u27s southern borders to implement the Zangzor Corridor, citing the UN Charter, which prohibits any change in international borders. However, another point that should be mentioned and addressed is the situation in Armenia.
It is true that today Armenia has almost found the legal status of an impotent state and is under severe pressure from Turkey (to deny the Armenian Genocide) and the Republic of Azerbaijan (to determine the exact borders and not to grant autonomy to Karabakh). However, according to historical experiences and the approach, Armenian expatriates can say that this approach of Ankara and Baku will lead to the establishment of a nationalist and possibly radical government in the future. This will have stronger positions than the Sargsyan and Kocharyan governments, which will not adhere to the agreements of the Pashinyan[1] government and will probably be strongly supported by France, America, and even Russia.
Based on this, in the end, instead of pursuing tension-causing issues in the form of the Zangzor Corridor and the Lajordi Corridor while respecting the United Nations Charter, the North-South Corridors, the transit connection corridor between the Persian Gulf and the Black Sea, as well as the Eco Corridor, can create wonderful fields. Provide for transit cooperation between Iran, Turkey, Russia and the three Caucasus countries in the 3+3 format. Moreover, Turkey is currently connected to Pakistan, Afghanistan, and Central Asia with the existing rail lines through Iran through the Eco Corridor, and from this point of view, there is no need to create the Zangzor Corridor.
Historical Background of Iran-Turkey Disputes
Since the formation of the Safavid[2] government in Iran, due to various reasons, including religious differences, there have been many political and military conflicts between the governments of Iran at the time (Safavid et al.[3]) and the Ottoman government. We briefly mention the events related to these conflicts:
After capturing the southern regions of the Ottoman Empire, including Syria and the cities of Mecca and Medina, and claiming the Muslim caliphate, Sultan Selim[4] Ottoman noticed the Safavid territory in the east. In 1516, Sultan Salim’s army in Chaldaran Plain defeated Shah Ismail Safavid’s army[5]. This defeat resulted in the capture of Diyarbakir and a part of Kurdistan from Iran, which was generally under Ottoman control in almost all subsequent periods, but Mesopotamia remained under Iran\u27s control.
After the battle of Chaldaran, no peace treaty was established, and a state of war was established between them. The contract of Amasiyah[6] was concluded in 1555, during the time of Shah Tahmaseb Safavid[7] and Sultan Suleiman. This treaty was the first treaty signed between the two governments of Iran and the Ottoman Empire and ended the wars between the two countries, known as the Twenty Years\u27 War. According to the Amasiyah Agreement, the states of Azerbaijan, Eastern Armenia, and Eastern Georgia were given to the Iranian government, Western Georgia, Western Armenia, and Mesopotamia (Arab Iraq) were handed over to the Ottoman government, and the city of Kars was declared a neutral zone. During the time of Shah Safi, Sultan Murad IV decided to attack Iran due to the defeat he suffered from Shah Abbas to recapture Baghdad and know about the chaotic situation in the Safavid bar. First, in 1935, he captured Yerevan, the centre of Karabakh, and in 1938, after capturing Diyarbakir and Mosul, he reached Baghdad and conquered there.
After the conquest of Baghdad, Zahab Agreement was concluded between Shah Safi and Sultan Murad. The boundaries of the occupations in the Caucasus region were determined according to the Amasya Agreement, but the border areas were not clearly and precisely determined. Nader Shah Afshar, in 1737 and the following years, fought with the Ottoman Turks, and since none of the parties achieved a decisive victory, he ended the hostilities by signing the "Kordan" peace treaty in September 1766. They ended themselves.
Both sides agreed that their borders would be established based on the contract Zahab[8], which was concluded between the Safavi Shah and Sultan Murad. The payment. In these battles, Eastern Armenia and Mesopotamia were captured by Iran. At the request of Ottomans, peace was established between the two countries and the first Erzurum treaty was concluded in July 1823 with an introduction, basis, conditions and eight articles. During the time of Mohammad Shah Qajar, due to the confusion of the Iranian states, Alireza Pasha, the ruler of Baghdad, attacked Muhamra (now Khorramshahr) in 1837 and caused a war between Iran and the Ottomans. With the intervention of Russia and England, on May 31, 1867, Muhammad Shah Qajar and Sultan Abd al-Majid Osmani signed the Second Treaty of Erzurum. Iran had arisen, used and occupied Qatar[9], a part of Iran\u27s territory, and changed the border marks to its liking and considered this area part of its territory.
In the meantime, the Treaty of Berlin was concluded between Russia and the Ottoman Empire on July 13, 1873, at the behest of England, and according to its article 90, the Ottoman government returned the Qasur region to Iran. The previous differences between Iran and the Ottoman Empire were the issue of determining the borders and insecurity in the borders. The previous treaties and the second treaty of Erzurum between Iran and the Ottoman Empire were able to end the territorial and border disputes between the two countries. On November 4, 1913, the Istanbul Protocol was concluded with the intervention of Russia and England between Iran and the Ottoman Empire to resolve territorial disputes, including an introduction and eight articles. The points’ names and the border route were clearly defined and known. This protocol never took legal form in Iran and the Ottoman Empire and was not approved and signed by the responsible authorities because the First World War did not leave an opportunity for its approval and implementation. It did not take long before the First World War started, and Thai forces once again occupied a part of Iran. Until the end of the First World War in 1918, the northern and northwestern regions of Iran were occupied by Ottoman forces and other governments.
Review of the Foreign Policy of the New Republic of Turkey
Peaceful coexistence and peace at home and abroad were Atatürk\u27s party slogans. The Turks avoided the idea of another victory or revising the borders.
Atatürk\u27s foreign minister, Tawfik Rushdi Beyk[10], determined his country\u27s foreign policy, in which the new Turkey did not want to capture an inch of foreign territory and was unwilling to surrender and lose an inch of Turkish soil. The basis of the foreign policy of this nascent government was neither border expansion nor retreat into the country.
Long before 1921, Mustafa Kamal[11] said:
»Let us recognise our borders by keeping Turkey small« (Herrera, 2016)
The Republic of Turkey only wished to preserve the integrity of its free territory. From the beginning of the formation of the government of the new Republic of Turkey, its foreign policy was based on the principle of neutrality and unity and friendship with all the governments of the world, especially the neighbouring countries. This principle, diligently implemented and followed by Turkey, constituted the program of Turkish foreign policy and was very different from the previous method of the Ottoman Empire. Atatürk now gained the freedom and independence of his foreign policy and followed a peaceful policy to complete the national reforms of his new country with peace of mind.
Turkey\u27s Occupation of Iran\u27s Border Areas and the Darkening of Relations between the Two Countries
The governments of the Republic of Turkey and Reza Shah Pahlavi inherited the previous differences between the Ottoman Empire and the Qajar Kingdom after the collapse of the Ottoman Empire and the change of monarchy in Iran[12]. According to their interests in foreign relations and having special relations with their neighbours, both governments sought to establish and maintain peace and tranquillity for internal reforms. One of the important factors that strained the relations between Iran and Turkey was the aggression that Turkey had committed towards the villages and lands of Iran. At the beginning of the establishment of their republic, the Turks occupied the areas of "Bolagh Bashi[13]", "Jozer[14]", and "Ghori Gol[15]", and despite Iran\u27s official protests, they were not willing to evacuate those areas.
The reasons that the Turks expressed their legitimacy were that the mentioned areas belonged to the Turkish government. They did not accept the certificate of the border commission in 1913 and declared that the commission was formed under the pressure of Russia and England. The National Assembly of Turkey (Ottoman) did not approve it, which is invalid. The Turks also took over the pasture that belonged to the Kurds of "Jikanlu[16]" in the past and prohibited the cattle of the said Kurds from grazing in that pasture and sought to arrest their cattle. For this reason, the Ministry of Foreign Affairs of Iran contacted the Turkish ambassador in Tehran. After announcing the protest, he said:
"Initiating these aggressions and operations is completely contrary to the expectations of the Iranian government and will have no other result than the darkening of the good relations of the parents of the government who have always avoided it."
Ultimately, he asked the Turkish ambassador to take quick action to evacuate the mentioned points. Among the other areas of Iran that were captured by the Turkish military forces and brought protests from high-ranking Iranian officials were the villages of "Siro"[17] and "Sar Tik[18]", where the Turkish army had established a military post. Following this incident, the Ministry of Foreign Affairs of Iran, in a letter, expressed its protest against the encroachment of the Turkish forces on the mentioned villages and other places, such as "Bulagbashi", and demanded the evacuation of those places.
The aggressions carried out by the Turkish forces were in the circumstances that, according to the Treaty of Constantinople (Iran-Ottoman et al. dated 1913), the areas of Bulagbashi, Siro, and Sar Tik belonged to Iran. During a correspondence with the Iranian ambassador in Istanbul on November 21, 1929, the Ministry of Foreign Affairs of Iran highlighted Turkish aggression in Bulagbashi, Siro, and Sar Tik. The Iranian ambassador also drew attention to Turkish aggression in the regions of Bulagbashi, Jozer, Nafto[19], Farzah Qalandari[20], Beldesor[21], Sheikh Silavi Alia[22], Ghasouk[23], Velik Alia and Sefali[24] in the vicinity of Maku.[25] Moreover, Awajiq[26] points out that the Turkish authorities have yet to respond to Iran\u27s request to evacuate the mentioned areas. He requested the Iranian ambassador to take the necessary action in this regard, the same year and the occupation of the Ibek Heights in the year on the side of the military forces of the Turkish government. It resulted in strong protests from Iran\u27s foreign minister at the time, Mohammad Ali Foroughi.[27] Other incidents also increased the intensity of the differences between the two countries.
In April 1926, to express goodwill and strengthen mutual peaceful relations between Iran and Turkey, the Treaty of Vedadie and Taminid[28] was concluded between the two countries. In the introduction of this agreement, it is stated that "the needs and duties that the present age creates and demands for the two nations have been taken into account, and as they believe and firmly believe that strengthening the friendship and brotherhood existing between them is obligatory. Therefore they decided that the material conditions of relations Let them light up their intimacy".
In the same treaty, the conclusion of customs and border agreements and postal exchanges were also foreseen. However, the border incidents and measures taken by the Turkish government to destroy the Kurds in the border areas between the two countries caused the situation to become complicated, and the relations between the two countries became darker. In this way, in October 1927, the Turkish government darkened its relations with Iran in a note expressing its resentment and in a harsh statement.
In that statement, Turkey claimed that some Turkish soldiers were captured by the Kurds in Turkey and were taken to Iran, and demanded the release of the captives along with their weapons and an apology from Turkey within ten days. Clive, in a note to Chamberlain in October 1927, states that according to the information he received from Azerbaijan, the attackers of the Turkish military forces were Turkish Kurds who did this in response to the offensive actions of the Turkish forces against the Kurds. In the following, he confirmed the content of the announcement of the Iranian government, which denied the accusation against him.
After receiving Turkey\u27s statement, which had threatened Iran to cut off political relations, the Iranian government appointed Mohammad Ali Foroughi, with full authority, to conduct negotiations and sign contracts related to border demarcation and border security issues. Iran\u27s ambassador to Turkey, In his confidential report to Tehran, during the meeting and conversation with the Turkish Foreign Minister Rushdi Beyk in Ankara, he pointed out the daily problems of Iran and Turkey and considered their roots to be the greed and fantasies of Russia. He also warned that we should use the opportunity that has now been obtained and in the situation where Tsarist Russia has also disappeared and unite, because there is a possibility that Russia will return to its former imperialist policy.
To prevent danger from Russia, we must agree on a plan. Rushdi Beyk and Foroughi also confirmed this opinion, which listed the problems that have hindered the establishment of friendly relations between Iran and Turkey. One of these problems is the issue of borders, which was resolved after prolonged conflicts but has now been renewed by the Turkish government. It is still being determined whether they are aware that it has already been resolved.
The other is the aggressions that the border tribes of Turkey have made on Iranian soil and deprived them of security. One is some actions outside the rules of your officers that you should prevent. Rushdi Bey emphasised the necessity of agreeing with Iran and added: the security of our borders is important to us so that we do not have to maintain a large military force and spend much money on our common borders, so we expect your support. Iran\u27s opinion at the beginning of the work is to determine the borders on the ground. However, the task of border security must be determined first. However, because we want to conclude, we are ready to solve both the issues of securing and determining the boundaries simultaneously. Foroughi stated that border security would only be achieved once the new demarcation is implemented.
In response, Rushdi Bey declared: "We do not accept the border and the 1913 protocol for fundamental reasons; in addition, our parliament did not approve it, and after the collapse of the Ottoman Empire, we renewed all our previous agreements with all countries. And Iran should not refrain from renewing agreements with the Republic of Turkey".
The basis of Rushdi Bey\u27s argument was that the Iranian-Ottoman border was based on the Treaty of Erzurum, and this border was not by it. In response, Foroughi said: "Border agreement" is related to the recognition of the country\u27s identity; it is not like a commercial and political agreement that can be cancelled at will. Further, Foroughi brought up the arbitration issue and said: "When two governments have a dispute, if they do not come to terms with each other, they must either resort to arbitration or go to war."
Rushdi rejects the Big War and says: "We do not impose any burden on you, neither do we want you to fight with Akrad[29] nor disarm. We just want you not to let your nomads come to our land and destroy our nomads. Do not let them into your land, and if they come, do not look in the border area.
For example, drive a hundred kilometres or fifty kilometres. In another confidential report that Foroughi sends from Istanbul to the high-ranking officials of Iran, he announces that since he has entered into negotiations again regarding Bulagbashi, the Turkish authorities have raised the issue of Aghri Dag[30] (Ararat) and the Jalali[31] tribe, and the issue of clearing the boundaries. Furthermore, they have considered the suppression of the rebel Kurds as vital for themselves. Referring to these cases, Foroughi advises the Iranian authorities that "it is obligatory for Iran to think about border security in any case and to prevent Jalalis from helping the rebel Kurds of Turkey and to be careful from the Jalalis of Iran or Turkish nationals." Who have come to Iran, the Turks, will not be harmed “because with these actions, our relations with Turkey have become very close, and the problem will be solved” (Pütter, 2017).
In May 1928, the Ministry of Foreign Affairs of Iran announced to Foroughi that recognising all the borderlines determined according to the 1913 protocol is extremely important for us, and we cannot ignore it in any way regarding Bolagh Bashi… In addition to all other reasons, the issue of the dignity of the government of His Majesty Humayun Shahshahi[32] is at stake, and we cannot in any way ignore the smallest part of Iran from the point of view of public opinion. The Iranian government wants to resolve security and boundary issues before starting cooperation in Aghri Dagh.
The issue of Aghri Dagh (Little Ararat Mountain)
Another case was the Turkish military forces\u27 aggression in Iran\u27s territory while suppressing the Ararat Kurdish rebellion.
During the conflict with the Kurds of Aghri Dagh (Ararat), under the pretext of suppressing the Kurds and needing to enter a part of Iran\u27s territory in that area, Turkish forces occupied Iran\u27s territory in Mount Ararat without permission and sufficient reason. Even after the end of the issue, the rebel Kurds of Ararat refused to evacuate the said point. In relation to these events, the Ministry of Foreign Affairs of Iran, on February 28, 1931, addressed the Turkish ambassador in Tehran in a protest note and announced that during the same days of the Kurds\u27 repression, the Iranian government did not hesitate to cooperate with the Turkish forces and in operation took part against the Kurds. However, the Turkish officers were not satisfied with this. After the suppression
მომხმარებლის უფლებების ცნება და ისტორიული მიმოხილვა
No full textThe article aims to establish the concept of consumer rights and the need for protection based on the historical necessity of the origin of consumer rights and the review of the existing legal regulations in Georgia, the European Union and the EU member states. Accordingly, the paper discusses the issues of the origin of consumer rights, their development in the territory of the European Union and the former Soviet Union. In the article, there is a separate review of the current approaches to the concept of consumer and trader in the legislation of the European Union, EU member states and Georgia.
Keywords: Consumer, Trader, Rights, Georgia, European Union, Soviet Union, Concept, Definition
Introduction
Consumer rights protection law is a relatively new and specific direction in private law, the purpose of which is, on the one hand, to protect the rights of the consumer as the “weak side” of a private legal relationship, and on the other hand, to reduce the risks of unfair use of monopoly power by large companies.
Protection of consumer rights is recognized as a priority by the Constitution of Georgia, according to the last sentence of Article 26 (4) of which, “consumer rights are protected by law”. Additionally, on April 4, 2022, the Parliament of Georgia adopted a new law “On the Protection of Consumer Rights”, which, to some extent, repeats the regulations and spirit of the EU Consumer Rights Protection Directive.
Consequently, the purpose of the paper is to discuss the stages of the origin and development of consumer rights based on the mutual comparison of the experience of the European Union and the former Soviet Union, as well as the necessity of the law for the protection of consumer rights based on the new law of Georgia, to determine the definition of consumer and trader by comparing it with the directives of the European Union and the legislation of the member states of the European Union. At the same time, the topic under discussion is relevant because the law of protection of consumer rights is a constantly evolving field, and defining the concepts of consumer and trader is key to determining the further development and transformation of the law of protection of consumer rights, taking into account the necessity and history of the origin of consumer rights protection.
1.Historical overview
1.1. Origin and development of consumer rights
Consumer rights protection law is a relatively new direction in legal science. Initially, the protection of consumer rights was related to the development of the market economy, and the need to protect consumer rights was due to the danger of abuse of the monopoly position of entrepreneurs in the market.[1]
The modern understanding of consumer rights originates from the United States President John Kennedy’s address to Congress in 1962,[2] where the president defined consumers as follows: “Consumers by definition include all of us”.[3] The further development of consumer rights is mainly related to the European Union. It is true that today the member states of the European Union have almost similar regulations for the protection of consumer rights,[4] although historically this harmonization has been quite difficult.
The first difficulty was related to the fact that the European Community included countries of completely different families of law, namely the families of common law, Roman law, German law and Scandinavian law.[5] However, despite this challenge, two important consumer protection programs were implemented by the European Commission between 1975 and 1980.[6] In particular, the Consumer Protection Program of 1975 provided for five basic consumer rights:
right to protection of health and safety;
the right to protect economic interests;
compensation for damages;
right to education (right to receive information);
the right to be heard.[7]
The second serious problem was related to the absence of a common market in the European Union and the existence of different legal regulations in the member states of the Union. The first serious attempt to create a common European market and adopt more or less similar legal regulations was the adoption of the Single European Act by the European Union countries in 1986,[8] as a result of which the previously existing regulations related to the internal market of the European Union were changed. Although the Act provided for high standards of protection of consumer rights, in practice it was not related to actual results.[9]
In order to bring closer the economic and political cooperation between the countries of the European Union,[10] the European Union was established in 1992 by the Maastricht Treaty,[11] which led to the need to adopt higher standards for the protection of consumer rights.[12]
One of the decisive agreements in terms of strengthening consumer rights is the Amsterdam Treaty of 1997, on the basis of which the right to receive information acquired a critical weight.[13]
1.2 Consumer rights in the Soviet Union
In parallel with the European continent, where standards for the protection of consumer rights developed along with the development of the market economy, in the Soviet Union there was a completely different picture. In a centrally planned market, the consumer had no power to protect his rights, as the producer dominated the market and there was a “must buy, easy sell” principle.[14] In the 1970s and 1980s, when consumer rights programs in Europe debated the five basic consumer rights, the Soviet Union failed to meet even the most basic consumer needs, which subsequently led to the 1990s and 1991 strikes of Siberian miners and Minsk tractor workers.[15]
After the collapse of the Soviet Union, the transition period led to serious risks of violation of consumer rights. For independent Russia, a satisfied customer has become a prerequisite for political stability.[16] Among the post-Soviet countries, Poland chose the “shock treatment” and “accelerated transition” policy, while Hungary chose the “gradual transition” policy, which had a positive impact on consumer welfare.[17]
1.3. Harmonization of national legislation with directives and Georgia on the path of harmonization
After the adoption of the common regulations governing consumer rights in the European Union, the issue of implementation of the said regulations in the national legislation by the member states was on the agenda. On this path, member states had two choices - either to extend consumer protection standards to the entire contract law,[18] or to regulate this area specifically by adopting new laws.[19] From this point of view, Germany and the Netherlands chose the first way, making changes to the Civil Code, thereby extending uniform standards to consumer and all “weak” parties of contract law.[20] In contrast, France and Italy have gone the other way and adopted a separate law (or code) for the protection of consumer rights.[21]
Unlike European countries, Georgia was a member of the Soviet Union and therefore shared the Soviet legislation. After the collapse of the Soviet Union, in 1996, even before the adoption of the Civil Code, the Law “On Protection of Consumer Rights” was adopted in Georgia,[22] which emphasized the importance of consumer rights protection in Georgia. At a later stage, after the adoption of the Civil Code of Georgia, the rights of the consumer were regulated to some extent by the Civil Code. A clear example of this was the existence of Article 336 of the Civil Code, which regulated the issue of transactions made on the street. In 2012, the Parliament of Georgia adopted the Law of Georgia “On Product Safety and Free Circulation”,[23] which repealed the 1996 Law of Georgia “On Protection of Consumer Rights”.
Harmonization of Georgia’s consumer rights protection legislation with European standards was greatly influenced by the signing of the Association Agreement between Georgia on the one hand and the European Union and the European Atomic Energy Community and their member states on July 27, 2014, including in the direction of consumer rights.[24]
Based on Article 26 (4) of the Constitution of Georgia and the Association Agreement with the European Union, Georgia adopted a new law on the protection of consumer rights on March 29, 2022. Therefore, Georgia, like Italy and France, has chosen the way of harmonizing with EU directives through a separate act.
2. The concept of consumer rights and the need to protect them
People’s daily life is unimaginable without purchasing personal items and using services.[25] At the same time, the purchase of goods and the use of services are in the interests of both sides of these relations, to the extent that they arise from the needs of both parties.[26] And the relations established between private persons, which are regulated by civil legislation, are based on the principles of equality of persons and freedom of contract.[27] The principle of freedom of contract, first of all, derives from the principle of private autonomy [28] and includes the freedom to conclude and determine the content of a contract.[29] And the equality of the parties means their ability, as a result of showing their free will, to freely choose a counterparty and establish a private legal relationship with him.[30] Historically, however, in this type of relationship, the trader has always had the power to pursue his own best interests by limiting the interests of the other party,[31] and thus he has tended to achieve and maintain a dominant position. At the same time, the consumer is recognized as less knowledgeable, less informed and economically inferior to the producer and trader.[32] This creates inequality between the parties and puts the consumer in a weak position. Thus, the issue of eliminating the mentioned inequality and ensuring the private autonomy and equality of the parties characteristic of private legal relations arises.
According to Article 10 (2) of the Civil Code of Georgia, “participants of civil legal relations may perform any action not prohibited by law, including those not provided for by law”. Therefore, the Civil Code of Georgia does not give unlimited autonomy/freedom to the parties, but, if necessary, clearly establishes a mandatory rule of conduct through imperative norms.[33] In such a case, the legislator aims to protect the weak side.[34]
Based on the above, when one party in private legal relations [35] is considered a weak party due to objective or subjective circumstances, the legislator tries to balance the interests of the parties through imperative norms and ensure the private autonomy of the parties and the equality of the parties.
The consumer, in the private legal relations established with the trader, is recognized as a weak party, not only because of the trader’s aspiration and real possibility to be dominant in the relationship, [36] but also, first of all, because of the consumer’s lack of awareness.[37] Accordingly, it is necessary to equalize the mentioned inequality between the parties. In this context, the provision of information at the pre-contractual stage can be a key tool for ensuring equality.[38] Therefore, the legislator, through imperative norms, imposes on the trader the obligation to provide the consumer with information about the goods and services to be purchased, which is necessary for the consumer to make a free and informed choice.[39]
According to the Consumer Rights Protection Directive, “This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer…”.[40] Article 2 (1) of the Law on the Protection of Consumer Rights contains a similar regulation, according to which “this law defines General principles of protection of the rights of the consumer who establishes a legal relationship with the trader...”. Therefore, the law of protection of consumer rights is the law regulating the relationship between the consumer and the trader.[41]
In summary, lack of awareness is one of the main factors causing consumer weakness, as a result of which the consumer is deprived of the opportunity to enter into a transaction with free will and equally influence this process. Thus, the law of protection of consumer rights ensures the realization of the principles of private autonomy and equality of parties,[42] which are the foundations of the progress of the market economy and civil stability.
3. Concept of consumer
Based on Georgia’s aspirations for EU membership and the Association Agreement signed with the EU, it is appropriate to consider the regulations of the Consumer Rights Protection Directive and the approaches of the EU member states to this issue.
3.1. The concept of consumer in the European Union Directive
According to the Consumer Protection Directive, a consumer is any natural person “who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession”.[43]
Based on this definition, two - Subjective and functional criteria[44] must be cumulatively present for a person to be considered a consumer. In particular:
The consumer must be a natural person (subjective criterion);
and he/she must act for non-professional purposes (functional criterion).[45]
Moreover, in mixed type of contracts, when a natural person acts partly within the scope of his commercial activity and partly outside of his commercial activity, moreover, the purpose of his commercial activity is limited and not predominant for the purposes of the contract, the person should be considered as a consumer.[46]
3.2. The concept of the user in the legislation of the member states of the European Union
There are different approaches in the EU member states regarding the definition of consumer. In some countries, the definition of consumer is defined as in the Consumer Rights Directive. For example, according to §13 of the German Civil Code, “a consumer is any natural person who enters into a transaction that does not belong to his business or professional activity”.[47] In addition, according to German judicial practice, the norms protecting consumer rights, to some extent, also apply to employees who are not self-employed.[48]
According to the “Patrik vs Pinto” decision of the European Court of Justice, a broad definition of a consumer is unacceptable and should be limited to a natural person only.[49] This approach is shared, for example, by Germany.
Although the member states of the European Union try to establish as much as possible the same standards in the law of consumer rights,[50] in the legislation of the member states, there are still different approaches to the concept of the consumer. This is not a violation of the directive, but the law of the European Union itself allows the member states to expand the concept of consumer in the national legislation and include also legal entities and natural persons who are not considered consumers according to Article 2 (1) of the Directive on the protection of consumer rights.[51] According to another decision of the Court of Justice of the European Union, it is possible for the jurisprudence of the member state to expand the concept of consumer and its protective rules to extend to such entities of law that are not natural persons in the sense of the directive, for example, in Italian law, the association of co-owners.[52] Under Austrian and Czech law, a legal entity can also be a consumer if it purchases a product or uses a service for non-professional purposes.[53] French jurisprudence considers natural and legal persons as consumers if they act with non-professional purposes. For example, a real estate agency that wants to install an alarm system at its workplace and enters into a contract for this is considered a customer.[54]
3.3. Definition of the Consumer in the legislation of Georgia
“Anyone of us is a customer”.[55] Similar to the directive on the protection of consumer rights, the legislation of Georgia also shares this approach.
According to the 1996 Law of Georgia “On the Protection of Consumer Rights”, “a consumer is a citizen who uses goods/work, services for personal needs, acquires, orders, or has such an intention”. However, today’s legislation in Georgia, like Germany, shares the definition defined by the Consumer Rights Protection Directive, with the difference that the consumer definition in Georgia is given in the Consumer Rights Protection Law, and in Germany - in the Civil Code. According to the Consumer Rights Protection Law, “a consumer is any natural person who is offered or who acquires or subsequently uses goods or services primarily for personal use and not for carrying out a trade, business, professional or other professional activity”.[56] The Consumer Rights Protection Law of Georgia, like the Consumer Rights Protection Directive, also provides for the case of mixed contracts. In the case of mixed contracts, there are generally four main approaches:
They are not considered consumer contracts;
They are considered consumer contracts if personal interest prevails;
They are considered consumer contracts if personal interest is disputed and unclear;
They are considered consumer contracts.[57]
The legislation of Georgia shares the 2nd and 3rd approaches, in particular, “the effect of the law on the protection of consumer rights also applies to such a mixed purpose contract, in which the interest of personal consumption prevails over the commercial interest. Ambiguity related to the priority of interest in the contract should be resolved in favor of the customer”.[58]
After the implementation of the new law, so far there has been no dispute in court in terms of consumer rights protection, so it is not known how the court will interpret this record of the law. However, in all cases, the explanatory note to the law specifies that state policy promotes “general principles of protection of the rights of an individual who enters into a contractual relationship with a trader...”.[59] It is clear that, in this context, the adoption of a new law is part of this policy of the state. Therefore, I think in all cases, the court will be limited to expand the concept of consumer too much to include legal entities (eg non-profit legal entities,[60] small and medium-sized enterprises, small and medium-sized enterprises[61] or non-governmental organizations).
4. The concept of a merchant
4.1. The concept of trader in the European Union
As mentioned above, the law of protection of consumer rights is the law regulating the relationship between the consumer and the trader. Terminologically, in the legal acts of the European Union, next to the customer, there are also other terms (for example, business, seller, service provider, etc.[62]), which, in fact, perform the function of the strong party of the contract. Due to the objectives of the paper, in this section we will discuss only the definition of the European Union Consumer Rights Protection Directive.
Article 2 (2) of the Consumer Rights Protection Directive defines a trader as “any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive”.[63]
Despite this interpretation of the directive, in case law the court evaluates a number of circumstances. The European Court of Justice in the “Kamenova” case notes that the definition of “trader” is defined more or less identically in the EU Directive 2005/29/ EC and the EU Human Rights Directive.[64] Accordingly, based on the judicial practice developed based on Directive 2005/29 /EC, in each specific case, the extent to which a specific entity is a trader should be determined based on the following criteria:
“Whether the trade is organized or not;
Whether trading is intended to make a profit;
whether the seller had a legal status that allowed them to engage in commercial activity;
Does the party have information about the item for sale, which the customer does not have and which puts him in a more favorable position and other criteria”.[65]
However, according to the definition of the European Court of Justice, these prerequisites are not exhaustive. Moreover, the court emphasizes that even if one or two criteria are present, it does not automatically mean that a person is a trader.[66] Thus, according to court practice, a person who is in a stronger position compared to the consumer is considered a trader.
4.2. Concept of trader in Georgian legislation
Georgia’s 1996 Law on Consumer Rights did not provide a definition of trader, instead the law provided definitions of “seller”, “performer”, and “manufacturer”.[67]
The law in force today, like the Consumer Protection Directive, includes a definition of a trader. In particular, according to Article 4 (h) of this law, a trader is “any natural person, legal entity or association of persons acting within the scope of commercial activity, as well as any other person acting on behalf of or on behalf of a trader”.
Based on this entry in the law, a trader can be a natural person, a legal entity or an association of persons, which operates within the framework of commercial activity.[68]
Conclusion
Along with the constant development of the world, the new needs of people lead to the need to organize existing relationships in a new way. A clear example of this is the law of protection of consumer rights, which originates from the 1960s and becomes crucial with the Amsterdam Treaty of 1997, according to which the right to receive information assumes a key role in terms of consumer protection. In contrast, in the Soviet Uni
THE EFFECTIVENESS AND VALUE OF USING ALTERNATIVE DISPUTE RESOLUTION MECHANISMS TO PREVENT OR RESOLVE LABOR DISPUTES AT AN EARLY STAGE
Get PDFThe development of effective mechanisms for the prevention and/or alternative resolution of labor disputes is one of the challenges of the Labor Code of Georgia. It should be noted that in 2020, in order to bring the legislation closer to the recommendations and standards of the International Labor Organization (ILO), as well as to the directives of the European Union, a number of changes were made to the Labor Code of Georgia, including regarding the prevention and/or alternative resolution of labor disputes. Despite the changes, the issue of the effective use of labor dispute prevention and/or alternative resolution mechanisms in practice is still questionable. The article discusses the mechanisms of prevention and/or alternative resolution of labor disputes provided by the Labor Code of Georgia. The existing legislative gap in this direction is highlighted. Based on the review of international legislation, effective mechanisms for the prevention and/or alternative resolution of labor disputes are proposed.
Keywords: ADR, Labor law, Individual labor disputes
Introduction
Disputes are part of human nature. It can be manifest everywhere, including the employment arena.[1] Conflict is inherent in any organization and if not managed properly, such conflict will become a more formal grievance, like a dispute.[2]
Employment disputes can be stressful and lengthy, no matter what the reason behind them is. They can be the result of dismissal, discrimination, and a range of other factors. In most cases, employees are willing the dispute to be resolved easily and without a long, drawn-out process.[3] Alternative dispute resolution (ADR), is often regarded as a better option than the more conventional mechanisms for the settlement of labor disputes, because of the lower cost and greater speed involved.[4] Nowadays, solving and/or preventing any kind of conflict at the workplace is one of the main prerequisites for the proper functioning of the modern labor market.[5]
The research conducted under the auspices of the European Union (EU) and the United Nations Development Program (UNDP) showed that the citizens of Georgia most often complain about the violation of labor rights.[6] Consequently, effective alternative mechanisms for avoiding and/or resolving labor disputes has the most importance for the labor market of Georgia. Despite the legislative arrangement in the Labor Code of Georgia, there is still a question mark about its effective use in practice.
The aim of the paper is to present ways of effective use of labor dispute prevention and/or alternative resolution mechanisms, by using the method of comparative research analysis.
The value of adr in labor disputes
The European Union has deliberately tried to promote alternative dispute resolution mechanisms.[7] International institutions like the UN and ILO are promoting the use of ADR in labor disputes, because of the various benefits and characteristics of it.[8] Several directives and regulations were adopted by the European Parliament and the Council of Europe to create a common legal framework for alternative dispute resolution mechanisms across Europe. [9]
The process of establishing alternative mechanisms for resolving labor disputes in Georgia began in 2011. The need to make changes to the Labor Code was greatly accelerated by the strained relations between the Georgian government and the labor movements.[10] In 2020, the latest amendments were made to the Labor Code of Georgia, regarding the prevention and/or resolving labor disputes in an alternative way.[11] According to the latest edition of the Labor Code of Georgia, consideration and resolving mechanisms for individual and collective labor disputes are different from each. Depending on the type of dispute, in the Labor Code of Georgia, we also consider the mechanisms of both dispute prevention and its alternative resolution.
2.1 Dispute prevention mechanisms in labor code of Georgia
Conciliation, information and consultations at the workplace, as well as the function of the labor inspection service to check compliance with the law of the situation at the workplace on the basis of a complaint or on its own initiative – are the mechanisms for prevention of individual labor disputes.
Article 62 (1) of the Labor Code of Georgia defines that, an individual dispute must be resolved by amicable procedures between the parties, which implies holding direct negotiations between the employee and the employer. Need to mention that this is not a mandatory provision, as Article 61 (5) defines that dispute arising during an individual labor relationship must be resolved by following the conciliation procedures provided for in Article 62 of this law and/or by referring to court or arbitration. It seems that, conciliation is an alternative means of dispute resolution and as the legislator makes it clear with the given “and/or” connection that, absence of conciliation procedures does not exclude the right of the party to apply to the court and/or arbitration. The Supreme Court of Georgia made an explanation regarding this issue and said that dispute resolution mechanisms are alternative, and which one will be used by the parties to the agreement, depends on the parties themselves.[12] Such wording of the regulation on conciliation may be considered as an obstacle to the effectiveness of alternative dispute mechanisms to avoid individual labor disputes.
As a result of the changes implemented in the Labor Code of Georgia, the regulation on providing information and holding consultations at the workplace was added to the Labor Code with Chapter 15. According to the Article 70 (1) an enterprise where at least 50 employees work regularly, the employer is obliged to provide information and hold consultations in accordance with the procedure established by this chapter. The right of employees to information and consultation can be exercised through an employee representative.[13] But the labor code of Georgia does not suggest effective measures for the protection of employee’s representative. So, there can be a risk for the employee’s representative to fulfil its obligation with respect to the labor code of Georgia.
According to the Labor Code of Georgia, the state supervises the labor legislation through the Labor Inspection Service.[14] Article 5 of the Law of Georgia on Labor Inspection defines the role of the Labor Inspection Service in the prevention of labor disputes clearly. According to Article 5, the purpose of the Labor Inspection Service is to ensure the effective application of labor standards. To achieve that purpose labor inspection, a) in case of request, providing consultation and/or providing information regarding the fulfilment of labor norms; b) providing the society with information promoting the observance of labor norms and taking care of raising its awareness by implementing information campaigns and other effective measures.
2.2 Dispute resolution mechanisms in labor code of Georgia
As the mechanisms for alternative resolution of labor disputes, there are various arrangements in the Labor Code, in the Law of Georgia on Labor Inspection and in the Law of Georgia on the Public Defender.
Depending on whether the dispute is individual or collective, the use of alternative dispute resolution mechanisms is regulated differently. According to Article 63 of the Labor Code of Georgia, a collective dispute (a dispute between an employer and a group of employees (at least 20 employees) or between an employer and a union of employees) must be resolved by an amicable procedure between the parties, which implies holding direct negotiations between the employer and a group of employees or between the employer and a union of employees or mediation In the event that one party sends the relevant written notice to the Minister.
According to the mentioned arrangement, the use of conciliation procedures and/or mediation in collective labor disputes is the only way to resolve the dispute. The regulation does not provide for judicial review of collective labor disputes. It should be noted that mediation, as an alternative method of collective labor dispute resolution, was established in Georgian legislation in 2013 and was aimed at solving the growing collective disputes in labor relations in a short time without court costs.[15] According to statistical data, a total of 32 labor mediation processes were observed. Out of 32 cases, 15 processes ended with an agreement, and in 9 cases the agreement could not be reached. The rest of the labor mediation processes ended with a partial agreement, or were terminated or postponed.[16]
According to the previous years’ statistics of labor mediation cases in Georgia, 47% of the mediations ended with an agreement, and in 28% of the cases the agreement could not be reached. Given the short period of implementation of the mechanism and other challenges, the current results, at first glance, may be considered a positive indicator.[17]
We can also consider the labor inspection service as an alternative mechanism for solving individual labor disputes. Since, according to the Law of Georgia on Labor Inspection, the labor inspector has the right to carry out state supervision c) recieving and reviewing complaints related to possible violations of labor norms; d) inspection.
We can also consider the public defender as an alternative mechanism for solving individual labor disputes. Law of Georgia on Public Defender and Article 8 of the Law of Georgia “On Elimination of All Forms of Discrimination” regulates the consideration of the case by the Public Defender of Georgia, according to paragraph 3 of which: “If the Public Defender of Georgia deems it necessary, he is entitled to schedule an oral hearing and invite the parties to settle the case. In case of settlement of the case, the Public Defender of Georgia monitors the fulfilment of the obligations defined by the settlement act.“[18]
However, despite this possibility, the effectiveness of the Public Defender\u27s office in dealing with labor disputes needs to be assessed, to the extent that, according to the new regulations, there is an intersection between the functions of the Labor Inspection Service and the Public Defender’s office. Because of this, the Public Defender appealed to the Parliament several times. [19] However, Labor Inspection still has jurisdiction over discrimination disputes.
Cumpulsory ADR as an effective way for prevention of labor dispute
ADR in respect to individual labor disputes is a voluntary mechanism for resolving or preventing disputes in an alternative way before court.[20] For instance, the possibility of using mediation in individual disputes is not regulated according to the Labor Code of Georgia. Disputing parties can use mediation only after applying to the court.[21]
In order to prevent individual labor disputes and/or solve them effectively in an alternative way, like collective disputes, isn’t it better to make the use of alternative dispute resolution mechanisms a compulsory prerequisite before applying to court?!
There is a difference of opinion regarding the compulsory nature of alternative dispute resolution mechanisms. Alternative Dispute Resolution mechanisms all over the world aim at a Restorative Justice Approach.[22]
The decision of the Constitutional Court of Georgia regarding the appeal to the court on labor disputes is worth noting. The Article 213 of the Code of Labor Laws was (Decision No. 2/3/13, 05.12.1996) recognized as unconstitutional, because certain categories of managerial workers, judges, prosecutors and investigators were actually deprived of the constitutionally granted right to appeal to the court; They were prohibited from filing lawsuits to protect their labor rights.[23] It can be said that the purpose of the decision was to make the legal regulation compatible with the right to a fair trial.
In this case, it is important to assess whether the compulsory use of dispute resolution and/or prevention mechanisms before going to court is contrary to Fair trial. It is also important to assess whether it is better for public order purposes to add alternative dispute resolution mechanisms as a mandatory prerequisite before referring an individual labor dispute to court.
Article 6 of the European Convention on Human Rights (ECHR)[24] is about the Right to a fair trial. Critics question whether compulsory mediation is a legitimate process in light of these provisions. In this respect, the CJEU has confirmed that compulsory mediation is not a breach of Art. 6(1) of the European Convention of Human Rights on the right to a fair trial, because the mandatory mediation procedures cannot result in a binding decision, cannot cause substantial delay in bringing proceedings, cannot expend any time-bar period; and cannot give rise to more than minimal costs.[25]
Internation Practice review
In this chapter, the existing practice in several European countries regarding the prevention and/or resolution of labor disputes through alternative dispute resolution is discussed. Research made by international labor organization made a comparative view regarding the Individual and collective labor disputes settlement systems in different European Countries.[26]
According to this research, in Spain, there are two kinds of conciliation procedure: Pre–court and in court conciliation. Pre-court administrative conciliation is mandatory for individual labor disputes in the private sector, with some exceptions for certain jurisdictions. Non-attendance of either party incurs a fine. If the conciliation ends without agreement, the way will be open for the parties to take the judicial route. The value of the conciliation procedure for the disputing parties can be seeable, as in Spain in the course of the judicial process, they will not be able to use facts different from those presented during the conciliation proceedings.[27]
In-court conciliation is pursued first by court secretaries, and if this fails, by judges. If a conciliation agreement is reached before the court secretary, it will have the same legal force as a judicial conciliation. [28]
In the UK, early conciliation was deemed as a necessary, pre-filing process that would avoid the ‘far too costly, time-consuming, and complex employment tribunal processes. [29]
In Australia and Belgium, a specialized tribunal is charged with individual disputes. In Belgium, the main institution for the resolution of labor disputes is the labor tribunal. Sweden’s system differs significantly from the other countries: the labor courts are given exclusive jurisdiction over all labor disputes in the unionized context, but non-unionized cases are handled first by the local district courts. All appeals from the district courts go to the labor courts, which are the final instance in all cases.[30]
In the case of Australia, there is a practice of free-of-charge telephone conciliation in the area of its competence (i.e., dismissal rights). It needs to mentioned that, Conciliation over the phone (rather than face-to-face meetings) was a controversial initiative. However, research evidence suggests that telephone conciliation has been generally prompt and effective, achieving a settlement in around four-fifths of unfair dismissal cases.[31] Employee’s representatives institute is in very common use in France. The rights of the employee’s representatives are defended in a way that they have the right to intervene in a range of areas during the grievance procedure. Their role seems very important in France labor market.[32]
Conclution
In this paper, the value of alternative dispute resolution mechanisms in labor disputes was demonstrated. As a result of the legislative review of Georgia, the gaps that could prevent its effective use were identified. Adding ADR as a mandatory component in individual labor disputes is one of the main challenges in this direction. As an example of a review of international practice, in order to prevent and/or resolve labor disputes in an alternative way, conciliation in individual disputes is the main prerequisite for transferring the dispute to court. Therefore, it would be good to evaluate the effectiveness of the presence of conciliation and mediation procedures as a compulsory prerequisite for considering the dispute before the court.
The role of employee representatives should be notified with regard to prevention of labor disputes. It is better that the representative of the employees should have such a high standard of protection that they can freely protect the interests of the employees.
It is also important not to lose the role of the ombudsman, as an alternative dispute resolution mechanism and to increase its effectiveness by separating its functions from the Labor Inspection Service.
Bibliography
Rwodzi NT., The use of alternative dispute resolution mechanisms in labor relations in the workplace in South Africa, UNIVERSITY OF FORT HARE.
Alternative Dispute Resolution (ADR) in the Workplace, The South African Experience, June 15, 2007, <https://www.accord.org.za/thematic-area/mediation/;>
Collective Dispute Resolution through Conciliation, Mediation and Arbitration: European and ILO Perspectives, Nicosia, Cyprus, 2007;
On the draft of the Organic Law of Georgia “On Amendments to the Organic Law of Georgia "Labor Code of Georgia”, ACT (2017). <https://myrights.gov.ge/uploads/files/docs/7951UNDP_GE_DG_Human_Rights_Survey_2017_geo.pdf>
G. De Palo; L. Constable, Promotion of International Commercial Arbitration and Other Alternative Dispute Resolution Techniques in Ten Southern Mediterranean Countries, Cardozo Journal of Conflict Resolution, 2006;
DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matters;
DIRECTIVE 2013/11/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR);
REGULATION (EU) No 524/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR);
Zhorzholiani, Resolving collective labor disputes through mediation in Georgian legislation, Tbilisi, Georgia, 2019, p. 16;
Authors, Commentaries on the Labour Code of Georgia, New Vision University, 2023; See: Supreme court decision AS-873-1183-07 June 4, 2008;
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Footnotes
[1] Rwodzi NT., The use of alternative dispute resolution mechanisms in labor relations in the workplace in South Africa, UNIVERSITY OF FORT HARE, p. vii.
[2] Alternative Dispute Resolution (ADR) in the Workplace, The South African Experience, June 15, 2007, p.9, <https://www.accord.org.za/thematic-area/mediation/> [Last accessed: 26.09.2023].
[3]<https://www.giambronelaw.com/site/advice/dispute-resolution/employment-law/employee-alternative-dispute-resolution/> [Last accessed: 26.09.203].
[4] Alternative Dispute Resolution (ADR) in the Workplace, the South African Experience, June 15, 2007, p.1 Accessible at: <https://www.accord.org.za/thematic-area/mediation/> [Last accessed: 26.09.203].
[5] Collective Dispute Resolution through Conciliation, Mediation and Arbitration: European and ILO Perspectives Nicosia, Cyprus, 2007, 2.
[6] On the draft of the Organic Law of Georgia "On Amendments to the Organic Law of Georgia “Labor Code of Georgia”, ACT (2017). See Human rights and justice in Georgia: public attitude and awareness, GG.42-45. <https://myrights.gov.ge/uploads/files/docs/7951UNDP_GE_DG_Human_Rights_Survey_2017_geo.pdf>
[7] G. De Palo; L. Constable, Promotion of International Commercial Arbitration and Other Alternative Dispute Resolution Techniques in Ten Southern Mediterranean Countries, Cardozo Journal of Conflict Resolution, 2006, 303-304.
[8] DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2008 on certain aspects of mediation in civil and commercial matters; DIRECTIVE 2013/11/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR); REGULATION (EU) No 524/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR).
[9] Ibid.
[10] Zhorzholiani L., “Resolving collective labor disputes through mediation in Georgian legislation”, Tbilisi, Georg
სამედიცინო სამართლის ცნება დაადგილი სამართლის სისტემაში
No full textThe scientific work is devoted to the legal nature and regulation of medical law as a branch of law. There is little scientific literature and judicial practice on medical disputes in Georgian realities. Therefore, the study aims to intensify discussion in this direction. The problem becomes even more relevant in the context of technological development in the medical field. The purpose of the research is to determine the object of regulation of medical law, the place of medical law in the legal system, and the relationship between medical law and medical ethics. To achieve this goal, it is necessary to answer the following questions: What relations are included in the scope of regulation of medical law? What is its method of regulation? Where is the place of medical law – is it included in civil law, is it part of criminal and administrative law, or does it represent a certain unity of all three areas? From this point of view, the subject and method of regulating medical law should be studied. Also of interest is a brief analysis of documents reflecting the international context in the medical field, especially in the area of protecting the personal autonomy of the patient. Research confirms that medical law is an interdisciplinary field. It includes law and other branches of science, such as bioethics, medicine, and psychology. Thus, there is a close relationship between medical law and medical ethics. It is also possible that a violation of medical ethics entails a violation of the law and corresponding liability. In addition, it appears that medical law includes parts of public (administrative) law, criminal law, contract law and tort law. The role of contract and tort law in effectively protecting the interests of the patient is special.
Keywords: Medical Law, Medical Ethics, Interdisciplinary Sphere, Administrative Liability, Private legal Responsibility.
Introduction
Medical law is considered a new branch of law for Georgian reality. Over the years, it has been integrated into other fields, so medical law as an independent field in Georgia has not received much attention until now. Perhaps one of the reasons for this was the lack of research and judicial practice on various issues of medical law in Georgian reality. However, this situation is slowly improving in our country, and medical law is becoming increasingly widespread as an independent branch of law. It is impossible to do otherwise since medical law is in no way inferior in importance to other branches of law.
In addition, in the context of technological development in the medical field, the need to pay more attention to protecting human rights has become on the agenda. This concerned the use of assisted reproductive technologies and taking into account the specifics of surrogacy in the medical field. Accordingly, the study aims to determine the place of medical law in the legal system. To achieve this goal, the following tasks are set: first, it is necessary to determine the subject of regulation of medical law and then clarify the method of regulating medical law. With their help, it is determined which relations are included in the scope of regulation of medical law and how medical law regulates these relations. This is a necessary condition for determining the legal nature of medical law - medical law is included in civil law, is part of criminal law and administrative law, or represents a specific unity of all three branches. In this way, it is possible to determine the features and principles of medical law and its place in the legal system.
Moreover, medical law is often discussed in close connection with medical ethics. It is sometimes equated with medical ethics, although experience today has shown that medical law has acquired a completely different meaning. Therefore, it is necessary to determine both the subject of regulation of medical law and the connection between medical law and medical ethics. In this context, it remains to be seen whether there have been any fundamental changes in patient advocacy that have highlighted the distinctive nature of medical law as a field. Therefore, conducting a brief analysis of sources at the national level and international contextual documents in the medical field will be interesting. It is also worth noting the approaches and postulates of the European Court of Human Rights regarding protecting the patient’s personal autonomy in the medical field.
Considering the specifics of research, normative-dogmatic, comparative, analysis and synthesis, and historical methods are used. With their help, various aspects of the problem, which have not yet received due attention, were highlighted.
Medical law and medical ethics
1.1. Area of regulation of medical law
From a semantic point of view, “medical law” includes two terms: “medicine” and “law”. Therefore, if they are briefly discussed, the essence of “medical law” can be easily established.
Medicine is a science. Science can be viewed as an organized body of knowledge. The method of science is descriptive. He investigates facts, processes natural phenomena and, therefore, tries to bring the facts into a system. Like ethics, law is prescriptive (evaluative) in nature. It sets the rules for human behavior.[1] Accordingly, the law determines what a person’s behavior should be. The term “medicine”, or more precisely “human medicine”, broadly includes all activities used to identify, treat and, if possible, cure and prevent human diseases. Scientific medicine is based on a wide range of other sciences, such as chemistry, physics, biology, psychology, sociology and others.[2] The main task of medicine is to care for health. Health is always related to a person’s ability to function well physically and mentally, and to reach their full potential.[3]
Thus, medical law is an independent branch of law that regulates the activities of a doctor, his professional functions, the relationship between doctor and patient and its derived consequences. This is a special branch of law that provides the human judicial protection in the field of medical practice and methods of human treatment, establishing the basic principles of the right to health care.[4] In addition, medical law is a set of norms that define the organizational, structural, and general legal relations of people carrying out sanitary and anti-epidemic measures, as well as other actions related to preventive and therapeutic care. The object of medical law is legal relations that arise during the implementation of preventive, therapeutic, sanitary and regulatory acts that determine the legal status of the participants in these relations.[5]
Medical law is a young and rapidly developing industry that combines legal norms governing relations in healthcare and other related issues.[6] However, expressing cases in medical practice in medical categories is problematic. The law may not separate these categories and there is a need to convey them in legal language, after which their use by law enforcement officer will be permitted. For example, a surgery performed without error according to medical standards may subject the physician/clinic to liability if a court finds that the physician or clinic is liable without fault. However, it is first necessary to establish whether the transplant is a thing in private law or a blood product stored in a blood bank, according to Article 1009 of the Civil Code. Without clarifying this issue, it is impossible to determine the degree of its deficiency, etc. In Georgia, this problem is clearly visible, which harms all parties in this relationship and highlights the vicious aspects: clinics and doctors resort to different methods of protection, for example, using unacceptable standard conditions to exclude liability as much as possible. However, the court then declares such conditions invalid due to inadmissibility. In addition, patients are unaware of when they can seek compensation from a doctor or clinic, which increases the number of frivolous claims and waste of time and financial resources for both parties.[7] However, the subjects of medical law are interdependent: the medical institution, healthcare workers and patients. A medical organization is an entity that provides medical services to patients. The health care professional has professional knowledge, and the patient is subject to treatment.[8] Therefore, it is critical that each branch of medical law work properly to protect the primary beneficiary of health care services — the patient.
The legal literature notes that next to the concept of “medical law” the broader term “health law” is used. Health care law regulates not only medical activities but also the procedures that must be carried out, the necessity of the procedure and the requirements for the specialists performing it. Health law covers a wide range of rules relating to health care, procedural issues and the organization of public health systems.[9]
Thus, medical law is a branch of law that regulates the rights of representatives of the medical industry, providers and consumers of medical services, patients and doctors. Compared to medical law, health law covers a broader area of rules relating to human health. Health law governs human health procedures that involve fundamental human rights and legal claims. Thus, there are differences between medical law and health law. Indeed, medical law and health law are often considered separately, but they should not be strictly separated since both disciplines contribute to the humanization of law.[10]
Therefore, the principles of medical law are social justice, humanism, equality, legality and unity of rights and responsibilities.[11]
1.2. The essence of medical ethics
Medical ethics is a medical deontology that includes moral principles for determining values and making appropriate decisions in medical practice. It includes a set of ethical standards and rules of conduct for medical personnel. Deontology is the principles of performance of professional duties, professional ethics and behavior by medical personnel, aimed at obtaining maximum benefit from treatment. Such attitudes promote a sense of respect and dignity.[12]
Medical ethics is closely related to law, but law and ethics are not identical. In many cases, ethics provide higher standards of behavior than laws. However, laws vary from country to country, and ethics extend beyond national borders. To meet patients’ expectations, healthcare professionals need to possess medical knowledge and practice the core values of the field, as well as demonstrate special concern for the patient, his capabilities and autonomy. Thus, there are many similarities between medicine and law, and they often overlap. Medicine cares about people’s lives and health in a different way, and law – in a different way. Lawyers and doctors study the general doctrines of forensic and legal medicine during their studies.[13]
Ethical approaches may involve deciding the ideal course of human behavior, while law sets minimum acceptable standards. Likewise, something can attract legal sanctions without being unethical. For example, if a physician acts on behalf of a private patient, he may be in breach of contract by choosing not to treat that patient. There may be an ethical reason for this. For example, if another patient needed urgent care, this may not always justify a breach of contract from a legal perspective.[14] However, when it comes to a tragic collision, equal interests collide, and the decision must be made in favor of one of them at the expense of an unlawful attack on the benefit of the other.[15]
2. The relationship of medical ethics with medical law
There is a clear connection between medical law and medical ethics.[16] Medical law is a legal discipline, the subject of regulation of which is a narrow range of relations, in particular, it extends to the relationship between the patient and medical personnel or medical activities.[17] The legal basis of medical law was created in the period after the Nuremberg trials, which gave impetus to its development. Articles of the Nuremberg Code restricted experiments on humans that could harm their psychosomatic state or lead to death.[18]
Medical ethics and medical law are complementary; The legal force of the rules of medical ethics is recognized by the courts, and failure by medical professionals to comply with these rules entails sanctions. Therefore, it is indisputable that medical ethics is considered a source of medical law. When the principles of ethics and rules of conduct in the medical field are illuminated by legal norms, these two areas intersect, that is, to a certain extent, a symbiosis of bioethics and medical law arises.[19]
Violation of medical ethics rules can also trigger legal liability. The fact is that by violating any principle of medical ethics, the violator can be held accountable. For example, this action may be the basis for administrative/disciplinary liability and private legal liability for violation of the patient’s personal independence (Article 1007 of the Civil Code, Law “On Health Protection”).
In addition, the doctor may be found guilty as a result of violating the duty to comply with medical standards.[20] Georgian case law explains this: by acting in accordance with medical standards, the doctor does not violate any obligations and is not accused. A doctor is liable for breach of duty only if the harm caused to the patient is caused by an error in treatment. If a doctor does not know a matter individually or shows professional weakness, this does not excuse him. This is due to the fact that a doctor violates mandatory medical care even when the doctor violates his duty to improve his education and qualifications and, therefore, does not have modern knowledge of medical science.[21] Thus, the cause of a medical error can be objective and subjective. Objectively, let’s say, there is a lack of scientific knowledge about the disease. The subjective cause of a medical error may be a consequence of the lack of experience of a particular doctor.[22]
Thus, there may be inconsistencies and similarities between a physician’s legal responsibilities and ethical responsibilities, but a physician is required to follow both the law and the guidelines of professional ethics. Even if a physician finds it difficult to comply with the law because it conflicts with his ethical beliefs, the physician is obligated to comply with the law.[23] Thus, the mentioned position overlaps with the principle: Fiat lex, pereat mundus, because “even if the whole country falls, the law must be observed!”[24]
3. Principles of medical law and medical ethics
There are four principles of ethics: Beneficence, nonmaleficence, autonomy and justice. The first two can be traced back to the time of Hippocrates “to help and do no harm”, while the last two arose later. Percival’s book on ethics, published in the early 1800s, emphasized the importance of the goal of protecting the interests of the patient, while autonomy and justice were not discussed at the time. Over time, however, both autonomy and justice were recognized as important ethical principles. In modern times, Beauchamp and Childress’s book Principles of Biomedical Ethics is considered a classic, providing insight into the application of these four principles and alternative approaches.[25]
During the Enlightenment, there was still an opinion that it was necessary to lie to a patient so that it would be easier for the doctor to care for the patient. In the 1800s, medical professionals were divided over whether a patient should be informed of a poor prognosis. Most doctors at that time were against informing patients about their condition. [26]
Later, the situation changes, and today, telling the truth is the most important component of the relationship between doctor and patient. Without this element, the doctor loses the patient’s trust. An autonomous patient not only has the right to know his or her diagnosis and prognosis but also has the opportunity to refuse disclosing this information. However, the doctor must know which of these options the patient prefers. In the United States, it is now the norm to provide patients with complete information regardless of the severity of the disease, but this was not the case previously. For example, 88% of doctors surveyed in 1961 indicated that they preferred to disclose their diagnosis.[27] This changed in 1979 when 98% of doctors surveyed supported disclosing the diagnosis to patients.[28]
The paternalistic approach to medical practice requires critical analysis in connection with technological and economic progress. This is due to the fact that the educational and socio-economic status of the population has improved, signs of globalization have appeared, and special attention has been paid to the patient as an individual, not as a group member. Accordingly, respect for the principle of autonomy imposes a duty on the physician to disclose to the patient medical information and treatment options necessary for the patient’s self-determination. In doing so, protecting autonomy serves to ensure informed consent, fairness, and confidentiality.[29]
Each of the four principles of ethics is considered a duty that must be fulfilled, unless, in a particular case, it conflicts with another principle. In such a conflict, the physician must determine the actual duty to the patient since the weight of the competing obligations will be assessed in light of their content and context. For example, a patient is in shock and is receiving emergency fluid resuscitation. Insertion of an indwelling intravenous catheter caused pain and swelling. Here, the principle of “do good” prevails over the principle of “do no harm”. However, we are often dealing with a more complex case. For example, this happens when a competent patient refuses medical intervention necessary to save life (for example, installing a ventilator) or asks to be brought to death (withdrawal of artificial ventilation). Ethical dilemmas are best seen when the principles of beneficence and autonomy collide. Good deeds have played a historical role in traditional medical practice. However, if this approach were to prioritize patient autonomy, it would be paternalistic, making the doctor-patient relationship similar to a father/mother relationship with a child. The father/mother can deny the child fulfilment of his wishes and can also influence the child in various ways - non-disclosure, manipulation, lies, coercion, etc. Accordingly, the parent determines what is best for the child. This is the essence of paternalism. Paternalism can be mild or severe. In soft paternalism, the doctor acts based on the principle of “doing good” (sometimes also “doing no harm”) if the patient is not autonomous or essentially non-autonomous. For example, a person has cognitive dysfunction due to a serious illness, depression, or drug addiction.[30]
Soft paternalism is associated with difficulties since it is difficult to determine whether the patient was not autonomous in deciding and also whether the action was ethically justified, corresponding to what the doctor considered valuable for the patient. In strict paternalism, the physician’s actions for the patient’s benefit are opposed to the voluntary decision of the autonomous patient, who is fully informed and competent. Therefore, this action is unjustified from an ethical point of view. At the other end of the scale of hard paternalism is consumerism, a rare and extreme form of patient autonomy in which the doctor’s role is limited to providing medical information, all possible options and treatments, while the fully informed patient chooses one of the available options. In this model, the role of the physician is limited; This approach does not allow the full use of the doctor’s knowledge and skills for the benefit of the patient, is tantamount to abandonment of the patient and is therefore ethically unjustified.[31]
4. Interdisciplinary nature of medical law
Medical law is an interdisciplinary (interdisciplinary) area of law. Medical law is at the crossroads of areas of law. It includes aspects of public law as well as civil and criminal law and cannot avoid the influence of European law.[32]
It is believed that medical law is an area in which the law particularly encourages good behavior. Medical law has largely developed by borrowing principles from other areas of law, such as torts and criminal law. The term “medical law” is used to refer to a wide range of legal relationships. Medical law governs tort liability, sometimes contract liability, as well as tort and criminal liability for treatment without appropriate consent, criminal liability for manslaughter and medical manslaughter - euthanasia (which is considered murder in England) and assisted suicide. In addition, medical laws criminalize breach of confidentiality, abortion, use of body parts, including organ donation, and death. Also, criminal law applies even in cases of cessation of treatment and refusal of treatment to a patient who cannot make a decision. In short, medical law applies to a person’s entire life, from birth to death. Many of the issues discussed by medical lawyers have serious ethical implications. It is, therefore important to distinguish between legal and ethical issues.[33]
In addition, medical law is considered a complex legal interdisciplinary field because it integrates bioethics, health law, criminal and civil codes, health care and quality of life; He also perceives health as a medical, social and legal category.[34] Medical law is a comprehensively developed branch of law, which includes legal norms governing public relations in the field of medical activity. Accordin
დაზარალებულის გარდაცვალებისას ზიანის ანაზღაურების პრობლემა
Get PDFLegislator has devoted CCG article 1006 (Civil Code of Georgia) to a tort liability for compensating the damage caused by the death of victim. Study revealed that prerequisites of part 1 of CCG 1006 are: a) death of a victim, b) unlawful and culpable act committed by a delinquent, c) causal relationship between conduct and result, d) existence of a person, whose material support was responsibility of the victim and e) liability to material support must be valid. These details must be thoroughly studied to use CCG 1006. Because persons, receiving material support from the victim, will have the right on material support only if all these requirements are met (cumulatively)
The fate of the foster child when the foster mother gets married – an analytical study in algerian law supported by jurisprudence
Get PDF Custody is viewed as the most significant consequence resulting from the disruption of the marital bond in the presence of children as it is directly related to their fate after the separation of their parents. In this case, the person who is granted custody has the right and obligation to take care of the foster child and to manage his affairs as well. For this, it is generally said that the mother is the first person that can assume the guardianship of the child as she is entitled to do so. Except that usually, the custodial mother wants to start a new life through a new marriage, which is generally followed by the fathers filing a lawsuit to drop custody. The present study aims to determine and examine the fate of the foster child following the custodial mother’s remarriage in accordance with the requirements of the Algerian Family Code and jurisprudence in this respect.
Keywords: Custody; Foster child; Mother; Marriage; Interest; Lawsuit
Introduction
The separation of spouses, when children are involved, automatically entails assigning custody to the person worth of it and who is expected to take care of them. This was approved by the principles of Islamic Law, International Agreements[1] as well as the Legal Terms of the Algerian Family Code.[2]
The legislator supported the issue of custody with provisions while taking into consideration the interests of the fostered child, regardless of who takes custody over. However, he did not accurately specify what was meant by the word interests, which opened the door to jurisprudence in several issues.[3]
The Algerian legislator considers that the marriage of the custodial mother is one of the reasons for invalidating custody. The foster mother generally fears that, once she starts her new life and founds a new family, she may lose her child. The reality has proven that, in several cases, the father immediately after hastens to file a lawsuit to drop the custody, because in some situations, it is actually feared that the fostered child may be brought up with a non-mahram foreign person. In addition, in most other times, this is done for the purpose of disengaging oneself from paying the alimony of food expenses and rent.
As the legislator is well aware of this, and in order to guarantee the protection of the fostered child, he provided the judge with the discretionary power that allows him to assess the child’s interest, based on some criteria upon which he can rely to build his judgment.
The present study attempts to answer the following research question: To what extent is it permissible for a custodial mother to keep her child after her marriage to a non-mahram foreigner in light of the discretional power granted by the legislator to the judge in this regard?
Indeed, the purpose of the present study is to deal with an important social issue in a legal manner that can certainly enlighten the reader\u27s thought, whether this reader is legal or informed. This is the case of a foster mother who fears losing custody of her child after her new marriage, and thus she considers the option of customary (clandestine or unregistered) marriage in order to avoid that problem. The major purpose is to discuss the concepts and clarify the legal procedures with respect to the role of the effective judiciary through jurisprudence.
This study relies upon the descriptive and analytical methods in order to describe the concepts and analyze the legal texts as well as the operative rulings of the judicial decisions that are related to the problem under consideration.
First: Dropping custody due to the marriage of the custodial mother to a non-mahram foreigner
Custody is a term that derives from the Latin word custodia which means guarding, watching, or taking care of. The foster father or mother who is entrusted with the child is expected to raise him/her and protect him/her.[4] Legally, the Algerian legislator defined custody in Article 62 of the Family Code as follows:
“........This is all about taking care of the child, teaching him/her, educating him/her according to the religious precepts and beliefs of his/her father, watching over his/her protection and preserving his/her health and morals. The custodian must be qualified for that”.
Likewise, in Article 64 of the same law, the legislator arranged those people who are worth of custody, starting with the mother, then the father, then the maternal grandmother, then the paternal grandmother, then the maternal aunt, then the paternal aunt, then the child\u27s closest living relative, while taking into account the interests of the fostered child.
On the comparative level, it was found that, in Indonesian law, the legislator had adopted two systems for Muslims. The age of differentiation is that of twelve. In fact, in Indonesia, custody is granted to the mother until the age of 12. Then, at that age, the foster child is empowered to choose his/her custodian. However, some exceptions may apply to granting custody to the father, even if the child is under 12 years old, or to the mother even when she is under punishment of deprivation of liberty or has an improper behavior.[5]
As for non-Muslims, the parents have the moral obligation to raise and care for children less than 18 years of age and those not married yet.[6]
The Algerian legislator framed custody invalidators or nullifiers. He considers that the marriage of the custodial mother with a non-mahram relative is one of them.[7] The reason for that is that it is generally feared that the custodial mother will be preoccupied rather with her foster child, while the non-mahram foreign husband does not take good care of the child, which is not the case for the mahram relative who has a certain family relationship with the child.[8]
The Algerian legislator followed the path of Islamic law. It was narrated that a woman said: “O Messenger of God, this son of mine, my belly was for him a vessel, my lap was for him Eve, and my breasts were for him a waterskin. His father divorced me and claimed to take him away from me. Then, may God’s prayers and peace be upon him, said, ‘You have more right to him as long as you do not get married.”[9]
The following gives a breakdown of the issues on which the claim for dropping custody in the Algerian law is based, as well as the discretionary power that is granted by the legislator to the judge regarding:
1- The case for dropping custody due to the marriage of the custodial mother to a non-mahram foreigner and its obligations
The right to custody is lost as soon as the custodial mother marries a non-mahram relative, as stipulated in Article 66 of the Algerian Family Code.
This ruling is derived from the Islamic law that several countries adopted in their national laws, including the Indonesian law which stipulated, in addition to that, other cases where child custody is dropped, like the punishment of deprivation of liberty.[10] It is worth noting that the Algerian legislator did not provide for this in the Family Code. However, the practical reality states that the judges in charge of the matter can assign custody to the person who is entitled to it when the divorced mother is sentenced to imprisonment after committing a crime. The mother\u27s demand to regain custody of the child after being released is subject to the discretionary power of the judge who investigates the matter and builds his judgment in accordance with what is required by the interests of the fostered child.
Furthermore, it is worth emphasizing that the term custodial person does not automatically refer to the mother solely; it may refer to the grandmother, maternal aunt and paternal aunt in the event that custody is assigned to them. However, if they marry a non-mahram relative, custody is systematically dropped.
On the other hand, one has to note that the wording of Article 66 is devoid of the controls regarding the child’s interests in the matter under study, which suggests that the marriage of the custodial person to a foreigner is absolutely inconsistent with the interests of the fostered child, and this is not true.
Nevertheless, in all cases, this cannot be considered as such because the legislator did not arrange the effect of losing custody by force of law in the event that the custodial mother gets married to a non-mahram relative. Rather, the custody loss would be based on a judicial ruling once the owner of the right to custody has submitted a claim for it. In this case, the judge will have the discretionary power to assess the matter.[11]
Based on the provisions of Article 426 regarding the Civil and Administrative Procedures Law,[12] the lawsuit to drop custody is supposed to be filed in the place where custody is exercised.
The plaintiff has to prove that:
- The husband is a foreigner and is not a close relative - This is done in accordance with the provisions of Article 66 of the Family Law and the principles of Islamic Law.
- The marriage is well documented – The fact is that the aforementioned provisions of Article 66 did not specify whether only customary or formal marriages are considered. Nevertheless, the jurisprudence in this regard ruled that the allegation about the marriage of the custodial mother must be confirmed with certainty, by means of a marriage contract for example, that has been established in accordance with the law in force. This means that a record that is withdrawn from the civil status registry office must prove that marriage. This is what is already being practiced in the courts.
- The marriage is consummated with the custodial wife - It must be noted that this case is not stipulated in the Family Code. However, the jurisprudence specified that when it ruled that the custody of a woman is conditioned by the fact that no husband has consummated the marriage with her. However, in that was the case, then he is forbidden to the custodial woman’s house, and therefore the wife loses custody.[13]
Furthermore, when the plaintiff proves the above, it is not possible to state with certainty that custody has been taken away from the mother and assigned to the husband because, in this case, the judge takes into account the interests of the foster child. These interests may be determined by the judge based on mechanisms that the law grants him the powers to use for that purpose.
2- Mechanisms for investigating the interests of the fostered child
When stipulating the parameters for assigning custody, the legislator considered that it was sufficient to refer only to the criteria that can help to achieve the interests of the child in custody, with the obligation to take care of him/her, teach him/her, and raise him/her in accordance with the religious precepts of his father, in addition to ensuring his protection. There is no need to give a specific definition for it, because its concept is flexible and can change when the temporal conditions vary. This concept may also change from one child to another.[14]
In a decision issued by the Supreme Court, the Personal Status Chamber ruled that the interests of the fostered child are assessed by the trial judge.[15] He can rely on several mechanisms in accordance with the general rules in the case of revocation of custody for the purpose of verifying the interests of the child under custody. The most prominent of these are:
Expertise- This is intended as an investigative measure to obtain the necessary information from specialists, or to prove certain material facts that are the subject of a real or imminent dispute dealing with the material side and not with the legal one which is the prerogative of the judge alone.[16]
With regard to custody, the judge resorts to expertise by appointing a social worker to investigate the validity of the custody applicant to exercise it in accordance with the interests of the child in custody, not only through direct personal contact with that applicant, but also by assessing the place where the fostered child is going to live.[17] In this regard, it is worth citing the decision of the Supreme Court[18] that ruled that the trial judge must examine where the interests of the fostered child lie using various means, including the appointment of a social worker.
The judge may also request a medical examination to assess the physical or psychological condition of the fostered child.
- Inspection - The judge is expected to go to the place where the custody is practiced in order to assess the social milieu in which the fostered child lives. He can enquire about the type of neighborhood, state of the dwelling, proximity to school, and other issues through which he can determine or assess the interests of the fostered child. Based on the above, he can then make a sound judgment about the matter.[19]
- Hearing witnesses - The judge may seek the assistance of family members of the fostered child to collect the necessary information that enables him to base his judgment in accordance with what is needed for the interests of the fostered child.
Now, if the custody applicant argues that the mother married a non-mahram foreigner residing abroad, then the custody shall be forfeited. It is worth mentioning a judicial decision that was issued by the Supreme Court which ruled the loss of custody due to distance because the custodial mother resides in a foreign country without even being married, while the father\u27s residency is in Algeria.[20]
Referring back to the text of Article 69 of the Family Law, one may find that the legislator once again granted the discretionary power, in this regard, to the judge according to what is required regarding the interests of the fostered child when the person entrusted with custody lives in a foreign country.
In the same context, and in another judicial decision that was issued by the Supreme Court concerning an unmarried mother residing in a foreign country, it was ruled that the judges of the Council had erred in applying the law when they assigned custody to the father because the custody was entitled to the mother who, after her divorce, gave birth in France and took care of her newborn, while the father did not oppose that, but only asked to drop the alimony. They considered that this did not violate the custody conditions that are stipulated in Article 62 of the Family Law.[21]
On the other hand, although the legislator provided the judge with several mechanisms to ascertain the interests of the fostered child, he, however, left the discretionary power to him. This allowed the judges, and even the courts, to resort to that discretionary power in completely different manners. This may lead to discrepancies in the rulings on the issue of dropping custody for the marriage of the custodial mother. It should be noted that, sometimes, the interests of the foster child are not taken into account and are completely neglected.
Furthermore, one has to mention that the defendant, who in this case is the custodial mother, can prove, in turn, that it is highly important to let the fostered child under her care, particularly when the child is too young or is an infant, and that taking him away from her may cause him psychological harm. She may also argue that the child has a disability or handicap that makes his custody difficult for anyone other than his mother.[22]
In addition, if the child goes to school, the mother can refer to his school results and highlight the good grades he gets, which indicates she is keen on his success and she is the only one who can take care of him in the best way.
Therefore, the discretionary power of the judge remains in all cases. Indeed, if he decides to keep the custody with the mother, then the father will be exempted from paying the rent dues. Nevertheless, if a judgment is issued to drop custody, then it will be assigned to the applicant, and the mother is then granted the right to visitation.
Second: The extent to which custody can be recovered by the mother after her divorce from the non-mahram foreign husband or following his death.
In fact, many cases have been raised regarding the custodial mother\u27s recovery of custody of her child after her divorce from a non-mahram foreigner or following his death. This must obviously be proven by a divorce judgment issued by the court or by the husband’s death certificate. Then, the mother files a lawsuit in order to restore her right to custody.[23] How permissible is that?
1- Disappearance of the reason for forfeiting custody
With reference to the provisions of the Algerian Family Code, and particularly in Article 71, it is asserted that the Algerian legislator provides for the possibility of returning the right to custody once the non-voluntary foregone reason has disappeared. In the sense of violation, this signifies that there are some optional reasons for which the right to custody cannot be recovered after its demise.
The lack of interpretation of that issue by the legislator engendered some ambiguity in the matter, which generally requires reference to the provisions of Islamic Sharia.
In this regard, the Maliki jurisprudence makes a distinction between the reasons for optional custody invalidators or nullifiers, as these reasons have a significant effect on the person’s decision to achieve it. Some of these reasons can be the marriage of the custodial mother or the relinquishment of custody.
However, the reasons for non-voluntary custody invalidators or nullifiers are those that are achieved without the person’s will, such as illness or disability.[24]
Based on the aforementioned, one may wonder about the position of Algerian jurisprudence in this respect.
2- The position of the Algerian jurisprudence regarding the extent to which the mother can regain custody of her child
It is worth emphasizing that the judicial decisions issued by the Supreme Court, with regard to the interpretation of the non-voluntary reason, have varied.
In fact, this was previously considered as a non-voluntary reason for the divorce of the custodial mother from a non-mahram foreigner. In this case, the custody of the girl was assigned to her mother after she filed a lawsuit for the attribution of custody again, and the Supreme Court considered that the Council judges applied the law properly.[25]
By founding the decision on that, they would have made the distinction between the marriage of the custodial mother to a non-mahram relative as an involuntary dropout reason, and the relinquishment of custody, which is considered as a purely voluntary reason that prevents the mother from regaining custody after retracting from it.
Nevertheless, jurisprudence has recently been explicit in conditioning the marriage of a custodial mother to a non-mahram foreigner, among the optional reasons. It indeed ruled in a decision issued in 2017 that the principle is about returning custody once the non-optional reason has disappeared. Among these reasons, one may mention the sickness, temporary disability, or residence abroad for a legitimate reason.[26]
Conclusion
It is widely admitted that today child custody deals with a social fact that stems from the separation or disintegration of the family, whether through a divorce or the like. Its high-quality organization requires the drafting of legal texts that are related to all its aspects while ensuring the proper application of these texts.
In addition, the fact that the legislator gives the discretionary power to the judge to assess the interests of the child under custody is quite logical, because the facts related to the issue of custody raised here differ from one case to another. The judge must actually identify the interests of the fostered child through mechanisms that he is authorized to apply.
Based on the above, the following recommendations can therefore be proposed:
- The legislator should stipulate that the marriage that forfeits custody is the legal one that is clearly established in the civil status register.
- The legislator has to prevent jurisprudence divergence in deciding about the issue of regaining custody after the divorce of the custodial mother from a non-mahram husband or his death, while taking into account the interests of the fostered child.
- The legislator should specify the date for calculating the year for the loss of custody for those who have the right to request it, as stipulated in Article 68 of the Family Law.
- A custodial mother who is married to a non-mahram relative must excuse the husband from changing the place of custody exercise so that he can exercise his right to visitation. Otherwise, she can be pursued based on the misdemeanor of deporting the fostered child and not handing him over to the one who has the right to do so, according to Article 328 of the amended and supplemented Penal Code.
- The Indonesian legislator must reconsider the issue of giving the fostered child to choose his custodian once he reaches the age of 12, because a 12 years old child does not have sufficient awareness that enables him to know his interest.
Bibliography
Books:
Othman Al-Takrouri - Explaining the Personal Status Law - Dar Al-Fikr for Culture, Publishing and Distribution in Jordan (1990)
Articles:
Boubaker Khalaf - The interests of the fostered child - A comparative jurisprudence study - Journal of Human Sciences, Issue 44 at Mohamed Kheidar University in the city of Biskra in Algeria (2016).
Bousabeat Sawsan - Protection of the fostered child between the unfairness of the legislative texts and the jurisprudence of the family affairs judge - Journal of Human Sciences, Volume 31, Issue 04 - University of Mentouri Brothers in the city of Constantine in Algeria (2020).
Adel Aissaoui - The discretionary power of the judge in determining the interests of the fostered child in accordance with the Supreme Court jurisprudence - Annals of the Univer
საზოგადოებისათვის სასარგებლო შრომა, როგორც თავისუფლების აღკვეთის ალტერნატივა თანამედროვე ქართულ სამართალში (ევოლუცია და ტრანსფორმაცია)
No full text This article is devoted to community service as an alternative to imprisonment and the legal problems of its use. It includes interesting and different views on the distribution of the benefit provided by the law of exemption from serving a sentence, which is based on a deep analysis of practice and research of scientific works. This small journalistic work is an attempt to make a modern scientific analysis of the introduction/establishment of a punishment that was previously foreign to our country, to what extent the mentioned legal innovation was justified, and what can be done for its further refinement/perfection, in addition, the specified concept focuses on the factors that allow for a correct complex approach from both the court and the decision-making body when deciding on the usage of the named legal mechanism. In addition, the present article aims to discuss the main problems with the given mechanism of release from serving a sentence, as well as to propose suggestions of a recommendatory nature for the regulation of legal relations, including, as mentioned, legislative initiatives in terms of improving/perfecting the current legislation. Additionally, a comparative legal analysis is made in the article, which makes the scientific research process of changing the punishment from punishment to work useful for society even more interesting and diverse. In particular, the existing system at the national level is compared with internationally known models, based on this comparison, a comparative analysis is made, which shows the similarities and differences between the models. The final part is devoted to the summary propositions that I have acquired due to the study and scientific processing of the raised issue. Historical, formal-logical, dogmatic, formal-legal, comparative-legal, descriptive, and systematic methods are used to re- search the problem in a separate chapter. Furthermore, the data of legal statistics are used through the study and generalization of the practice of local councils and the court. The opinions, proposals, and recommendations presented in the article will be interesting for theorists and practitioners interested in the given issue, as well as for legislative and administrative bodies, as well as for the court. In addition, the work will be interesting for non-lawyers, as it scientifically elaborates on community service as an alternative to imprisonment in modern Georgian law.
Keywords: community service, evaluation criteria, imprisonment, resocialization, judicial practice
Introduction In modern Georgian law, a lot of attention is paid to the humanization of criminal legislation because the strictness of the law did not turn out to be a solution to the situation created in practice. Such a trend can be observed in European and American criminal law; Georgian criminal law does not lag behind this approach. This is also confirmed by the fact that the democratic processes implemented in recent years and the liberalization of the criminal law policy have added a special importance to such an important institution in modern Georgian law, which is called useful work for society. This is mainly because the mentioned legal mechanism is both a real and effective alternative to imprisonment, which is not related to the complete isolation of a person from society and is the best means of limiting the use of imprisonment, as well as the resocialization of convicts - rehabilitation. That is, in the field of fighting crime, in addition to coercive methods, the state already uses other methods of persuasion. It is regulated in the "post-criminal incentive" norms, such as the legal bases for assigning work useful to society and others. Community service as an alternative to imprisonment is not new in Georgian legislation, and it was introduced/developed in 1999. After establishing this institution as an alternative type of punishment, a considerable period has passed, and a certain scientific analysis has already been performed on how effective this type of punishment is and what can be done for its further perfection and improvement. Based on this, there is no doubt that the interest in the mentioned issue is constant, which requires a correct understanding of the given legal mechanisms at the stage of scientific research and conducting measurable operations in practical activities to solve the problems raised during the appointment of community service, as well as to achieve the goals of punishment. The named topic, along with the theoretical one, has great practical importance in law-making and law enforcement. In addition, modern Georgian legal literature on this topic is very scarce because the main focus is on the problem of crime, and the final opinion on what can be done to solve the legal problems in assigning community service has not yet been formed, there is still no answer to the question of how to To make the correct use of this legal mechanism so that the goals of the punishment are effectively achieved and to prevent the commission of new illegal and criminal acts and the return of a non-resocialized person to society. In addition to this, the domestic legislation is not entirely favorable and requires appropriate changes, in addition, there is a heterogeneous practice of the court in relation to the "revision" of the decisions made by the local councils of the Special Penitentiary Service. Also, it should be noted that until now, there is no statistical recording of the subjects related to the issue of return to the penitentiary institution of those persons who were released by the local councils of the special penitentiary service and replaced the unpaid part of the sentence with community service, also there is no statistical recording of the persons whom the court mainly As a punishment, useful work for the society was determined, but despite this, they did not fulfill the assigned duties or they committed crimes again. The purpose of the research topic is to determine the essence and meaning of community service, to establish the pros and cons of community service as an alternative to imprisonment, to analyze the importance of legitimate operations when using a lighter type of punishment - community service, to establish how much it is possible for the local council of the special penitentiary service to rely on when making a decision Only one criterion is to determine to what extent it is permissible for a court to deprive a person of one type of benefit provided for by the law in another form, which is designated by the local council of the special penitentiary service, to outline the circumstances leading to the heterogeneous practice of the court, to determine the main methods that will contribute to the effective functioning of the given mechanisms, to analyze the punishment Procedural legal problems of discharge, for example, the extent to which enforcement is possible assigned duties and how adequate their form is in relation to the circumstances of a specific person, etc. Hypothesis of the research topic: how effective is the form of punishment, and what causes the legal problems of its use. To achieve the goal of the research, the task is formulated: to study the opinions of scientists and to achieve the goal of the research by answering questions related to problematic topics, at the same time, to examine the experience of foreign countries and make recommendations in terms of adjusting/improving the current legislation. The subject of the research is the opinions in the legal, sociological, and philosophical literature in relation to the issue of assigning work useful to society, as well as identifying the causes of the problems arising from its use, and the types and forms of detection. The object of the research is legal problems identified in the use of community service. The paper will discuss the characteristic features of the critical aspects of the given topic and the determining factors. When talking about the scientific novelty of the topic, the following should be emphasized:
This article is the first attempt at a complex study of the research topic;
In the article, the position will be formulated as to whether the court has the right to invalidate the decision made by the local council of the Special Penitentiary Service on the basis that it only mentions the issue of resocialization of the convict and goes beyond the evaluation criteria established by Article 13 of the rule approved by the order N320 of the Minister of Justice of Georgia on August 7, 2018.
It will be substantiated from a judicial and rule-making point of view, how reasonable it is to regulate the most important detail of replacing the unpaid part of the sentence with a lighter one - the standard of justification of the decision - by a by-law.
The idea is proposed to add other types of evaluation marks, "evaluative measures" to the criteria established by Article 13 of the rule approved by the order N320 of the Minister of Justice of Georgia on August 7, 2018.
The opinion will be analyzed as to how appropriate it is to add the victim\u27s position to the criteria established by Article 13 of the rule approved by Order N320 of the Minister of Justice of Georgia on August 7, 2018.
Legal problems of criminal procedure will be analyzed, for example, when appointing the mechanism of release, the court takes into account the issue of achieving the goals of punishment, how far it is possible to fulfil the assigned duties and how adequate their form is in relation to the circumstances of a particular person.
It will be discussed whether the local council of the Special Penitentiary Service is justified in justifying the negative decision based on only one criterion.
The manner of conducting the oral hearing session, etc., will be evaluated.
Chapter I. A Brief Historical Perspective of the Establishment and Development of Work Useful to Society, Existing Practice and its Comparative Legal Characterization
The Essence of Work Useful to Society
Work useful to society is in absolute accordance with the definition of work, the only difference is that, in this case, work is not a voluntary measure, but it is a form of punishment. Community service is a healthy alternative to punishment that benefits the convict, the community, and the government. This type of punishment is cost-effective and helps the state to save costs. The convict is required to perform certain work for free under the supervision of a probation officer. The main goal is to make the offender understand the crime committed and take responsibility for it. In addition, community service should be used only when no specific victim exists.[1]
According to paragraph 47 of the Recommendation of the Committee of Ministers of the Council of Europe CM/Rec (2010) 1 "On the Probation Rules of the Council of Europe to the Member States", community service is a form of public punishment or a measure that involves the organization of free labor by the probation authority for the benefit of the community and Overseeing it, in the form of real or symbolic compensation for the damage caused by the offender. Community service should not have a humiliating character, and probation authorities should try to find work that will contribute to developing the convict\u27s skills and social involvement.[2] In its essence, this type of punishment represents a form of restitution, its punitive function is manifested in the fact that it restricts the freedom of the convicted person for a particular time and deprives him of time.[3]
1.2 Labor Origin and Development Useful Work to the Public
This form of punishment has stood the test of time. The origin of useful work to the society is the original collective work of the Soviet government in 1920 without imprisonment.[4] In Germany, it was mentioned for the first time in 1892 in Liszt\u27s criminal policy tasks. In 1895, the German Lawyers\u27 Union paid attention to him at the 23rd Conference of Lawyers.[5] Community service was first used in European countries in 1971 in Switzerland in juvenile criminal law.[6] From 1972, this form of punishment was introduced in England and Wales. Then community service was introduced in the Netherlands in 1981, in Denmark, France, and Ireland in 1982, and in Norway in 1984. Today, the legislation of almost all European states recognizes community service and assigns it as public sanctions and measures.[7] Scandinavian countries (except Denmark) introduced community service in the 90s.[8]
At this stage, useful work for society is used in various ways as an alternative to short-term imprisonment in European countries. In less serious and serious crimes, this is the punishment provided by the sanction. This type of punishment is voluntary. Community service will be replaced by a fine or imprisonment if the person does not work. It can also be used as a surrogate for a specific punishment, i.e., punishment is imposed, and then the particular punishment is replaced by community service. The judge will first pass a sentence of imprisonment and then replace this sentence with community service. Community service is used only when a person is sentenced to imprisonment. In Luxembourg, Denmark, and Sweden, community service is not an independent form of sanction but an obligation linked to sanctions, fines, and imprisonment. In Sweden, community service is not a separate form of sanction but is a commitment to a form of sanction such as protective supervision, which is used instead of short- and medium-term imprisonment for young offenders, and in Norway, it is used not only as a sanction but also as a commitment in juvenile probation.[9]
Community service was first used in the US in 1966 for drunk drivers, and has since been introduced in all states, and has since spread to Australia, New Zealand, and South Africa.[10] Today, community service is used in every state in the US as either an independent sentence or a requirement of probation, or an alternative to imprisonment or fines. It should also be taken into account that in the USA, every day of community service reduces the amount of the fine.[11]
In Georgia, community service as a punishment appeared in the legislation since 1999, when the Criminal Code of Georgia was adopted, although for a long time, it was the so-called "Dead norm". Its effective use started on March 11, 2011, after the implementation of legislative changes. Currently, community service is used not only as a punishment but also as one of the conditions of diversion.[12]
According to the legislation in force in Georgia, work, useful to society, can be assigned in five instances, namely:
The corresponding norm of the private part of the Criminal Law Code of Georgia provides for community service as punishment;
When the justice implementing body appoints this punishment as an additional punishment;
During the signing of the plea agreement, based on Article 55 of the Criminal Code of Georgia, when community service is prescribed as the main punishment, while the corresponding article of the private part of the criminal law of Georgia does not provide community service as a punishment;
Based on Article 42, Part 6 of the Criminal Code of Georgia;[13]
by the local board of the special penitentiary service, although this does not apply to high-risk convicts and persons deprived of liberty for life.[14]
Here, the council decides in accordance with Article 73 of the Criminal Code of Georgia, Articles 40, 41 and 43 of the Prison Code, as well as the "Parole from serving a sentence by the local councils of the special penitentiary service, a state sub-departmental institution included in the system of the Ministry of Justice of Georgia On approval of the procedure for considering the issue and making a decision" the procedure approved by the order No. 320 of the Minister of Justice of Georgia dated August 7, 2018. From the aforementioned legal acts, the Criminal Law Code and the Prison Code of Georgia regulate the issue of the use of benefits provided by the law only in general, the important details of the issue, such as evaluation criteria and the measure of justification, are determined by the Order N320 of the Minister of Justice of Georgia. In this case, the question is logically raised: from the point of view of justice, how appropriate is it to resolve the issue of replacing the unpaid part of the sentence with a lighter punishment by order of the minister? The answer to this question is not so simple.
For example, Papuna Guruli believes that it is inappropriate for the most important detail of the grounds for conditional release, replacing the unpaid part of the sentence with a lighter one - the standard of justification of the decision - to be regulated by a by-law.[15] He writes: "In order to achieve the goals of the punishment, both the stage of imposing the punishment and its execution are important. During the latter, control over the effectiveness of the punishment should be carried out and two things should be determined: 1. Have the goals of the punishment already been achieved? 2. Will it help to achieve the goals of the punishment if it is only partially done?". The question arises - if the punishment is regulated by the criminal law code, why should its effectiveness be checked based on the by-law? Naturally, the law goes through a much more difficult and multi-step verification process before adoption, and the level of trust in it is much higher. Moreover, the "Typical decree of the local council of the Ministry of Corrections of Georgia" is in its essence only an organizational (administrative) document, and entrusting it with an important criminal law issue indicates a decrease in the importance of the issue.[16]
It is true that, on the one hand, there may be a tendency to "lower the game", but it should be noted that this issue will be regulated by the criminal law code or will be binding in all cases written by an individual administrative-legal act. Therefore, the local council will not exceed the established limits in any case. Requirements, in no case, will he have the authority to reject or leave any criteria outside the evaluation; according to the results, I believe that the implementation of law-enforcement activities will take a more formal form. In addition, the Minister\u27s order was issued on Article 41 of the Prison Code, "On Normative Acts", Article 25, Sub-Clause 1 of the Law of Georgia, and "On Amendments to the Prison Code" of Georgia on the 5th of 2018 According to Article 2, Clause 5 of Law N3128 of July, i.e., an individual administrative-legal act is based on the foundations of a normative act, it should also be taken into account that there are no less procedures to go through in terms of acceptance before the legal act takes a perfect form and arbitrary writing of a specific legal issue cannot be done.
Article 13 of the rule approved by Order No. 320 of the Minister of Justice of Georgia on August 7, 2018, "About reviewing and deciding on the issue of parole release from serving a sentence by the local councils of the special penitentiary service, a state sub-departmental institution included in the system of the Ministry of Justice of Georgia", establishes five criteria, based on which the appropriate decision is made based on their assessment and mutual reconciliation, here one may think that the legislator rejected the legitimate approach altogether, however, we must remember that the council is not given unlimited authority, at its own discretion, to decide without any normative basis, especially when there is a right to appeal, which is not difficult at all.
It is also necessary to analyze how exhaustively all the evaluation marks are written, whether one of the mandatory criteria is necessarily the position of the victim in relation to the person whose freedom is prevented since the clarification of the relationship between the offender and the victim should be given the most significant importance, first of all, because this does not contribute to new revenge-based to commit a crime. I think that the correct measurement of this fact implies the use of legimetry, which should also take into account the fact that there are often cases when the victims, due to personal feuds, do not give their consent to not have a claim against the convicted and want to retaliate in this way, in addition, there are facts when forced or by providing certain material benefits, the desired document is obtained. To avoid such consequences, I think a logical question arises, would it not be unreasonable for the position of the victim to be taken into account by the review body as a non-binding guideline standard? My answer to this question is positive, based on the goals of its activity, the local council does not reject this concept.
The same approach can be used to determine the mandatory criteria for holding an oral hearing. In the special report of the Public Defender of Georgia, it is recommended to write a norm that will directly oblige the council to invite the convicted person to the oral hearing.[17] I believe that the mentioned legislative initiative to amend the Prison Code is inappropriate because it violates the Council\u27s discretionary powers based on its content, and all mandatory criteria are expected to be general in nature, which are taken into account based on unwritten norms. Also, it is impossible to hold an oral hearing session for all persons. It is pointless because there are cases when the presented motion and case materials do not need to raise additional questions.
The ne
HOUSE ARREST AS AN ALTERNATIVE TO PRISON SENTENCE IN MODERN GEORGIAN LAW: (Evolution and Transformation)
Get PDFThis article is about house arrest, one of the types of non-custodial punishment in modern Georgian law, where the legal problems of using this benefit, provided by the law, are discussed, which is based on a deep analysis of practice and research of a number of scientific works. The importance of the topic was determined by the unfavorable state of the domestic legislation, the existence of a non-homogenous practice on the part of the court in relation to the “revision” of the decisions made by the local councils of the special penitentiary service, the incalculability of statistical data, as well as the great practical importance of the said topic in the process of both law-making and law enforcement, due to the paucity of modern Georgian legal literature regarding this concept. The aim of this article is to clarify the legal nature and the extent of house arrest, not only on the example of Georgia, but also on the example of some foreign countries, which will make the process of scientific research of the legal problems, of replacing the remaining sentence with house arrest, even more interesting and diverse. In addition, the article also aims to analyze the errors made in the applied practice and to develop scientifically based recommendations to eliminate the gaps in the rules regulating house arrest. The results of the theoretical/empirical research allow legal analysis to be made on the introduction/establishment of non-custodial punishment, which was previously unfamiliar to our country; to what extent the aforementioned legislative innovation was justified and what can be done for its further refinement/perfection, which is ultimately aimed to prohibit the usage of non-homogenous practice, regarding the use of the mentioned legal mechanism, on the part of both the decision-making body and the court. Historical, formal-logical, dogmatic, formal-legal, comparative-legal, descriptive and systematic methods were used to study the problem, posed in a separate chapter of the article. Furthermore, the data of legal statistics was used to study and generalize the practice of local councils, as well as the court, and the final part is devoted to the conclusive decrees obtained as a result of the study and scientific processing of the raised issues.
Keywords: house arrest, evaluation criteria (evaluative marks), prison sentence, practice of local councils of special penitentiary service and justice implementing body
Introduction
In modern Georgian law, day by day, special attention is paid to the humanization of both criminal law and penal law legislation, since the strictness of the law did not turn out to be a solution to the situation created in practice. The democratic processes implemented in recent years, as well as the liberalization of the criminal justice policy, have shown the role of non-custodial punishments in their own way. The institution of house arrest can be considered as one of the outstanding expressions of liberalization of non-custodial sentences, not only in the case of crimes committed by adult convicts, but also in relation to minors. This is mainly due to the fact that house arrest is both a real and effective alternative to imprisonment, which is not related to the complete isolation of the convict from society and is the best means of limiting the use of imprisonment, as well as resocialization of the convicts - rehabilitation. With this, as we can see, the state is already using the so-called “post-criminal encouraging” norms, one of which is the legal basis for the appointment and enforcement of house arrest and others.
From the introduction of this type of punishment in Georgia, which on its own doesn’t have a long history, a considerable period has passed, some scientific analysis regarding the effective functioning of the given legal institution has changed. Therefore, the discussion of the topic, with its evaluations and recommendations, I think is quite important, especially in the background, when it remains an object of constant public observation again and again.
The topicality of the topic was determined by the unfavorable state of domestic legislation, the existence of a non-uniform practice on the part of the court in relation to the “revision” of the decisions made by the local councils of the special penitentiary service, the lack of statistical data regarding the return to the penitentiary institution of those persons who were released and replaced by the local councils of the special penitentiary service. The unpaid part of the sentence is house arrest, as well as those persons for whom the court determined house arrest as the main punishment, but despite this, they did not fulfill their duties or committed crimes again, as well as the great practical importance of the named topic, both in terms of law-making and In the process of law enforcement, in addition, the scarcity of modern Georgian legal literature regarding this concept.
The article aims to clarify the legal nature and extent of house arrest, not only on the example of Georgia, but also on the example of some foreign countries, which will make the process of scientific research of the legal problems of replacing the remaining sentence with house arrest even more interesting and diverse. To develop scientifically based recommendations to eliminate the gaps in regulatory norms. The hypothesis of the research topic is to determine how effective the form of punishment is and what causes the legal problems of its use.
To achieve the goal of the research, it is formulated task: to study the opinions of scientists and to achieve the goal of the research by answering questions about problematic topics, at the same time, to examine the experience of foreign countries and make recommendations in terms of adjusting/improving the current legislation.
The subject of the research is the opinions in the legal, sociological and philosophical literature regarding the issue of the appointment of house arrest, as well as the relevant positions on the identification of the causes of the problems arising during its use, the types and forms of their manifestation, and the object of the research is the legal problems identified during the use of house arrest. When talking about the scientific novelty of the topic, the following should be emphasized:
This article is the first attempt at a complex study of the research topic and represents the first monographic study;
The article will formulate a position on the following issue: whether the local council should be limited to give priority to only one main criterion when making a decision on replacing the unpaid part of the sentence with a lighter one;
From the point of view of law enforcement and rule-making, the article will substantiate the position of how reasonable it is to regulate the standard of justification of the decision on the change of the regime of execution of house arrest by a by-law;
The article will analyze the point of view as to how appropriate it is to add an assessment mark to the criteria established by Article 13 of the rule approved by the order of the Minister of Justice of Georgia on August 7, 2018, N320 - failure to make a summary decision on another criminal case;
The article will evaluate the legal problems of criminal procedure, for example, when appointing the mechanism of release, the court takes into account the issue of achieving the goals of punishment, how far it is possible to fulfill the assigned duties - in the part of the protection of the defined regime;
It will be discussed what can be considered special circumstances;
Section 8 of Article 43 of the Prison Code will be explained in terms of consideration of petitions, etc. Sh.
The essence and meaning of house arrest
At the initial stage of the complex reduction of house arrest, it is important to investigate what this type of punishment is and how it is explained both in Georgian legal dogmatics and in the applicable legislative norms.
To discuss the essence of house arrest in the Georgian legal framework, we should refer to both the Criminal Law Code and the Juvenile Justice Code and the Order No. 146 of December 28, 2017, of the Minister of Corrections and Probation of Georgia “On Approving the Rules for the Execution of House Arrest”, since the mentioned legal acts explain its nature. According to Article 47[1]1 of the Criminal Code, house arrest means imposing the obligation on the convicted person to stay at his place of residence for a certain period of time. Article 69 of the Juvenile Justice Code, similar to Article 471 of the Criminal Code, establishes the appropriate definition of house arrest, the effect of which in this case applies to minors, which does not mean that a minor under house arrest must be placed at home for 24 hours Based on this, we can conclude that Article 69 of the Code of Juvenile Justice and the Criminal Code have a unified definition of house arrest. Regarding the penitentiary system, the first part of Article 4 of the rule approved by the Order No. 146 of the Minister of Penitentiary and Probation of Georgia on December 28, 2017, defines the regime of execution of house arrest in the same way as Article 471 of the Criminal Code, house arrest. This minister’s order confuses the essence of house arrest and the mode of execution as if there is not even an iota of difference between them. I think that the first part of Article 4 of the rule approved by the Order No. 146 of December 28, 2017, of the Minister of Penitentiary and Probation of Georgia should be formulated so as not to confuse the concepts of these two concepts. It should be emphasized that the majority of the mentioned articles are devoted to the conditions necessary for the use of house arrest, and the feeling remains that part of the definition is not spelled out precisely. I believe that house arrest should be interpreted as a form of non-custodial punishment, which implies the obligation to stay continuously at the place of residence of the convicted person/minor during the corresponding period of the day and night established by the legal act, which is carried out with the use of electronic supervision or without the use of electronic supervision in the event that technically it is impossible to execute the sentence using the means of electronic supervision. Perhaps, the given definition is not perfect, but the only attempt is to present the nature of house arrest in a complex way, which will help those interested in the given topic to further refine the concept of this punishment.
In the Georgian legal literature, the only opinion regarding the essence of house arrest is found in the thesis of Professor Venedi Benidze, who believes that house arrest is a restriction of freedom for a specified period, by prohibiting leaving the house and imposing other restrictions established by law (prohibition of telephone conversations, receiving and sending correspondence, imposing police supervision and etc.) which is applied to the accused and the sentence by order of the judge, for the purpose of their temporary isolation from society.[2] I think, in this case, the above-mentioned definition is more suitable for such a definition of house arrest, which represents it only as a preventive measure.
Perhaps, time will pass and in Georgian legal dogmatics, there will be a discussion about how correctly and perfectly the definition of house arrest as a non-custodial punishment is defined in the current legislative acts, and appropriate changes will be made to refine the regulatory legal framework.
Among preventive measures, after imprisonment, house arrest is one of the strictest types due to the form of its commitment, in a way we can even say that it is related to imprisonment by its nature, although it is actually used as an alternative to imprisonment, which facilitates its execution without isolation from society, in addition, from the economic standpoint, it is a very favorable way for the state, because the state does not have to pay the corresponding costs for the provision of convicts in penitentiary institutions. It is even cheaper for the state to enforce this particular type of punishment. Also, we should not ignore the situation of violators of the rule of house arrest, in which case it may happen that a person’s house arrest may be replaced by another legal measure based on the judge’s decision, which includes stricter measures, such as imprisonment as a measure of punishment. Therefore, the execution of house arrest is adjusted to the interests of the convict, the state and the law, on the one hand, to promote the resocialization - rehabilitation of the person, and on the other hand, to prevent new illegal and guilty actions, which is ultimately aimed at protecting the legal rights and freedoms of citizens. Based on this, we can conclude that the use of house arrest is very important and it is a very effective form of punishment.
Types of house arrest and its execution mechanism
“There are three types of house arrest. The most severe - the closest to imprisonment - is house arrest, which obliges the offender to remain at home at all times. Allowed exceptions are visiting a medical facility or participating in a religious ceremony. Home detention is less strict - a person can only leave the house to go to work, to an educational institution or to go to the doctor. The most liberal form is curfew, when the prisoner is obliged to stay at home for certain hours, which is determined by the court’s decision. It mainly concerns the night hours”. “House arrest can be accompanied by electronic control”.[3] According to the same rules, house arrest cannot be used incorrectly and inappropriately. There must be a reason for using such an alternative and the personality of the offender must be taken into account.[4]
As already mentioned, house arrest is carried out with the use of electronic supervision or without the use of electronic supervision in the event that it is technically impossible to execute the sentence with the use of electronic supervision.
In the homeland of Electronic Monitored Home Confinement, in the United States of America, three different types of home confinement are used:
Curfew - obliges a person to stay away from home at night and on weekends. This type of house arrest is a relatively mild form of punishment.
“Home Detention” is a more severe form of punishment compared to the first type of house arrest, which obliges the person to stay at home all the time and gives the right to leave the place of residence only for specified purposes.
“Home incarceration” is the strictest form of house arrest, which implies the absolute prohibition of leaving the house and receiving visitors.[5]
The legislation in force in Georgia does not recognize such a division. Accordingly, the obligations imposed during the execution of house arrest are radically different from the types of obligations existing in the United States of America. Here, the regime of execution of house arrest (hereinafter - the regime) refers to the obligation to stay continuously at the place of residence of the convicted person during the corresponding period of the day and night established by the legal act.[6]
As for the enforcement of house arrest without the use of electronic means of supervision, it is related to personal supervision. The person is checked at this time through irregular telephone conversations or personal visits. In the modern period, house arrest carried out with such irregular personal contact is replaced in most cases by house arrest carried out with electronic supervision.[7] Taking into account the specifics of the place of execution of house arrest in Georgia, if it is technically impossible to execute the sentence using the means of electronic supervision, supervision is carried out through periodic control visits of the probation officer. This means making at least six unannounced visits to the convicted person at the place of execution of the sentence during the hours of house arrest.[8]
The many different uses of electronic surveillance around the world can generally be divided into two groups: Frontdoor Systems and Backdoor Systems. The alternative to prison prevents a person from serving a prison sentence entirely. Electronic monitoring is used instead of pretrial detention or short-term imprisonment. The “Backdoor System” is used for parole after serving a partial prison sentence.[9]
A brief historical perspective of the origin and development of house arrest
We find the use of house arrest as a form of punishment in the Middle Ages, naturally, it was a very innovative step in that era, although it should be noted that its subject was a quite successful scientist at that time - Galileo Galilei, therefore its use and relief probably happened rarely and it was not widely used, although the origin of the form of punishment was recorded as the first proven fact in 1632 in Rome, Italy.[10] Galileo’s work was a significant departure from Aristotle’s thinking. His conflict with the Catholic Church is also seen as an important early example of conflict with authority and freedom of thought, especially in the field of science, in Western society, exemplified by the fact that Galileo was forced to confess his “mistakes” in a 1616 decree under the threat of torture. Galileo agreed and was brought to court. On June 21, 1633, he was sentenced to life imprisonment and forced to renounce his ideas. After doing so, the sentence was commuted to house arrest. He was imprisoned from 1633 to 1638 and during this period he was able to publish a few more works because he could receive visits from some of his colleagues.[11]
The mass use of house arrest in the last decades of the 20th century was connected to the development of technology and, accordingly, the possibility of electronic surveillance. Experiments on electronic human surveillance have been taking place since 1964 at Harvard University. The first sentence of electronically controlled house arrest was also handed down in the United States in 1983, when Jack Love, a judge in the Albuquerque, New Mexico City Court, convinced a computer technology dealer to develop a system for five convicts to be electronically monitored. Initially, the system was only used in the home, as it required fixed telephone lines. Later, in the 1990s, mobile devices and Internet connectivity made it possible for surveillance to be carried out not only at home, but anywhere the convict moved.[12] After that, the said punishment spread so quickly that by 1988 there were 2,300 convicts under house arrest across 32 American states,[13] and ten years later, by January 1998, there were already 95,000 electronically controlled house prisoners in the states.[14] In other countries, namely Canada, Great Britain, Australia, New Zealand, Singapore, South Africa, Sweden and the Netherlands, the number of convicts sentenced to house arrest each year was relatively unpredictable.[15] As for Europe, this type of punishment, unlike the United States of America, took hold later. Electronically monitored house arrest for minors was introduced in Great Britain in 1989.[16]
No matter how surprising, house arrest was first used in Russia in 1795 against Count Bestuzhev-Ryumin.[17] According to P. I. Lyublinski, this coercive measure was used as early as 1632 in Shein’s case against Belosevski himself.[18] House arrest as a form of punishment was also provided for in the 1923 Criminal Law Code of the Soviet Union. In the indicated period and context, house arrest was used for political and criminal offenders, although the place of execution of this punishment was not defined, which made it an instrument of political punishment.[19]
Naturally, the international law system has always influenced Georgian law, therefore, it took several decades for Georgian law and the state in general to receive the successful institutions of the American and European model of juvenile justice, including house arrest as a lighter form of punishment in the Georgian legal space. The institution of house arrest in Georgia has been operational since September 1, 2015. This type of punishment was used only for juvenile convicts, in the cases provided for by the Juvenile Justice Code and according to the established procedure. From January 1, 2018, house arrest was implemented in the Criminal Law Code of Georgia, as well as for adults. Despite the fact that the use of this type of punishment does not have a long history, there are still some legal problems both from the point of view of law-making and law enforcement.
Georgian legislation offers different terms of house arrest for adult convicts and minors, in the case of an adult, a person without a conviction may be sentenced to house arrest for a period of six months to two years,[20] and for a minor, six months to 1 year, as regulated by Article 69, Part 2 of the Code of Juvenile Justice. It is obvious that there is no difference between the lower limit of punishment for both minors and adults, and the upper limit is not identical, and this indicates disproportionality. Lowering the threshold has long been suspected of being disproportionately large.
It is especially important to develop an appropriate legal norm, which will establish that the competent authority for determining the hours of house arrest for a minor can be both the court and the local council when replacing the remaining sentence with a lighter one.
It is also acceptable to take into account the fact that until now there is no such legal record in the current legislation that would regulate the basic rules and conditions for determining the regime of house arrest, which would take into account