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კონფისკაცია და ყადაღა, როგორც ტრანსნაციონალური ორგანიზებული დანაშაულის წინააღმდეგ ბრძოლის ეფექტიანი საშუალება∗
No full textTransnational organized crime and the fight against it are big challenges for the world. That is why international cooperation plays an important role in the fight against transnational organized crime. Two types of international cooperation should be distinguished: the cooperation between courts and judicial institutions and international police cooperation. In Georgian legislation, they are sharply separated from each other. The Law of Georgia “On International Cooperation in the Field of Criminal Law” regulates international cooperation between courts and judicial cooperation. The mentioned law is one of the important documents from the point of view of international cooperation. It regulates matters related to the revealing of legal aid in criminal cases, extradition, forwarding of criminal case materials or their duly certified copies, execution of judgments, international cooperation related to confiscation of property, and transfer of persons sentenced to imprisonment. The article will directly discuss confiscation as a mechanism of fighting against transnational organized crime based on the Palermo Convention and the law of Georgia, “On International Cooperation in the Field of Criminal Law”. The norms governing confiscation in the Criminal Code will be discussed, as well as the Civil Code of Georgia, the provisions of which provide the opportunity to file a lawsuit for confiscation of property.
Keywords: Palermo Convention, organized crime, confiscation, international cooperation
IntroductionTransnational organized crime and the fight against it is a big problem for the civilized world. Due to the nature of the transnational organized crime, close cooperation between countries is considered a unique way to combat it. A number of areas of cooperation between courts and judicial institutions are described in the Palermo Convention, which is an essential document in organized crime prevention. In Georgia are two important documents in this regard: The Law on “International Cooperation in the Field of Criminal Law” and the “Law on International Cooperation in the Field of Law Enforcement”. The purpose of both laws is to strengthen international cooperation between courts and judicial institutions, as well as between law enforcement agencies.
The confiscation of illegal and undocumented assets and the seizure/confiscation of assets intended for the commission of such crimes is considered one of the best ways to combat transnational organized crime. When committing/preparing transnational organized crime, property/profits are accumulated in different countries, and the property obtained as a result of such activities is returned and strengthens organized groups. That is why it is relevant and essential to enhance international cooperation and close legal relations between countries to confiscate property/income due to the commission of a transnational organized crime or intended it to be committed.
The purpose of the research topic is to study the norms of the Palermo Convention, which at the international level regulate the rules for the confiscation of property between state parties as a result of or for the purpose of committing transnational organized crimes. Determining its compliance with the Law of “Georgia on International Cooperation in the Field of Criminal Law” is also important.
The subject of the article is the internal legal acts of the country, including the regulation of confiscation/seizure of the Criminal Code of Georgia and the Civil Procedure Code of Georgia, with the attitude of international cooperation - the Law of Georgia on “International Cooperation in the Field of Criminal Law.
The Regulatory Norms of Confiscation and Seizure in the International Law
1.1. Assets/Benefits Subject to Confiscation under the Palermo Convention
We find confiscation and seizure as one of the measures of procedural coercion in the different international legal acts. Among them are the Palermo Convention and the 1998 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.”[1]
According to Article 2 of the Palermo Convention, “freezing” or “seizure” shall mean temporarily prohibiting the transfer, conversion, disposition, or movement of property or temporarily assuming custody or control of the property based on an order issued by a court or other competent authority.[2] Concerning “confiscation”, which includes forfeiture where applicable, shall mean the permanent deprivation of property by order of a court or other competent authority.[3] Before adopting the Palermo Convention, an identical definition existed in the 1998 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.[4]
Article 12 of the Palermo Convention requires the participating states to confiscate the proceeds or property of relevant value obtained by committing crimes under the Convention, as well as confiscation of property, equipment, or other means used or intended to be used to commit these crimes.[5]
This refers explicitly to committing or intending to commit acts criminalized under articles 5 (participation in an organized criminal group), 6 (laundering of proceeds of crime), 8 (corruption), and 23 (obstruction of justice) of the Palermo Convention on Confiscation of Property. For example, money paid in bribes, income received as a result of the activities of organized groups and other criminal benefits.[6] Interestingly, what is meant by “confiscation of equipment or other means”? Devices may include vehicles, computer equipment, and other similar items that criminals have used or will use to commit crimes. Other means may include documentation or intangible goods.
Article 12 of the Convention also obliges the member states to take such measures as may be necessary for the possible identification, search, seizure, or freezing of any item specified in the first paragraph of this article, with the aim of its final confiscation.[7] This article again obliges the member states to adopt the relevant legislation so that the courts and other institutions can carry out the function mentioned above.[8] For example, in England, there is an “Agency for the recovery of assets”, which in 2005 received more than 17 million pounds sterling from the confiscation of property.[9]
According to this article, if the proceeds obtained through crime are partially or wholly converted or transformed into other property, measures aimed at confiscating the property provided for in this article shall be applied to such property.[10] Also, if proceeds of crime have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to the assessed value of the intermingled proceeds.[11] In this case, income means the benefit obtained directly or indirectly from criminal activity. Conversion means changing the type of thing, for example, converting one product of gold into another product and mixing the income obtained through criminal means with legal income; this means, for example, buying a house partially with the income received through lawful means, and partially as a result of criminal activity. In this case, the part of the property obtained by illegal means is subject to confiscation/seizure.
In the Palermo Convention, the legislator made confiscation not only of the property or benefits obtained directly as a result of the crime but also of the profit obtained from the criminal activity. According to Article 12, Section 5 of the income or other benefits derived from proceeds of crime, from the property into which proceeds of crime have been transformed or converted or from the property with which proceeds of crime have been intermingled shall also be liable to the measures referred to in this article, in the same manner, and to the same extent as proceeds of crime.[12] The idea behind this provision is, for example, to prevent income from renting a house bought due to a crime from being considered “legitimate” income. This article clarifies that confiscation of this kind of proceeds is possible.
1.2 Analysis of the European Court of Human Rights Case-Law
There is another interesting note in Article 12 of the Palermo Convention. According to this note, States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation to the extent that such a requirement is consistent with the principles of their domestic law and with the nature of the judicial and other proceedings.[13] A similar provision is contained in the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention), under which each Party may consider shifting the burden of proving the legal origin of alleged proceeds or other property. Subject to confiscation to the extent that such action is consistent with the principles of its domestic law and the nature of judicial and other procedures.[14] Both entries are almost identical and place the onus on the alleged perpetrator to prove the legal origin of the proceeds of crime and the property subject to confiscation.
Interestingly, this protocol contradicts Article 6 of the European Convention on Human Rights and how the burden of proof is legally transferred to the accused/convict. In connection with this, it is crucial to consider the judicial practice. For example, consider the case of Telbis and Viziteu against Romania.[15] In the present case, Telbis and Visiteau, as the owners of the seized property, had an opportunity at any time of their initiative to be involved in the forfeiture proceedings. Even though they were not accused in the specific case, they were granted party status upon request and became involved in the judicial process. According to the European Court of Human Rights assessment, the decision to confiscate the property was made in full; the trial was conducted per the principle of competition, where the owners were entitled to present their opinions and evidence.[16] “Based on the basic research, the national court decided to confiscate only that part of the property whose legal origin could not be convincingly demonstrated by the owners. Therefore the European Court considered that the applicants had an adequate opportunity to protect their interests at the national level”.[17]
Regarding confiscation of property, when analyzing judicial practice, the 2015 decision of the European Court of Human Rights, “Gogitidze et al. v. Georgia” is important. The case was about the confiscation of illegal and undocumented property. In particular, during the consideration of the case, it was revealed that the salary of the accused Gogitidze was three times lower than the value of the property purchased by him, in particular, the applicants complained about the non-compliance of the administrative rule, according to which they confiscated their property with the right of ownership protected by the European Convention.[18] The mentioned decision is interesting from several aspects. In particular, the applicant contested two elements of the proceedings: 1. National legislation allowed the confiscation of the applicant\u27s property as illegally obtained and undocumented until his guilt is proven; 2. During the proceedings, the burden of proof lay on the applicant.[19]
In this decision, the European Court noted that states can confiscate property related to serious crimes (such as corruption, money laundering, drug-related crimes, etc.).[20] At the same time, the European Court notes that the burden of proving the legal origin of property declared illegal falls on the defendant. Confiscation measures are applied not only in relation to proceeds from crime but also in relation to such property as other income and indirect benefits that are used for conversion, exchange, or obtained by joining with other possible legal property.[21]
The European Court considers the confiscation decision by the national court based on the assertion that the defendants\u27 legal income was insufficient to purchase the said property, to be legal, even without a guilty verdict. In such cases, the European Court does not require the “beyond reasonable doubt” standard to be met.[22] Regarding the violation of Article 6, the European Court reiterates that according to the case-law established by it, confiscation of property, without establishing guilt, has a preventive and/or compensatory nature, not punitive. Therefore, it does not lead to violating the provisions mentioned above in the Convention.[23]
The above-mentioned reasoning and this approach of the European Court allow us to make important conclusions. In particular, confiscation of property should not be understood as only a form of additional punishment; the purpose of confiscation is to prevent crimes. Secondly, concerning the presumption of innocence and the defendant\u27s burden of proof, it should be noted that in this case, the defendant is obliged to prove the legality of the income, otherwise, it is assumed that the person has obtained this property illegally and unjustifiably. In the case of Gogitidze and al., the person was deprived of his property because, based on the evidence, A. Gogitidze\u27s annual income was much less than the value of his purchased property.
Regulatory Norms of Confiscation in Georgian Legislative Acts
2.1. Confiscation and Seizure as a Form of Punishment in the Criminal Code
As for the regulatory norms of confiscation/seizure in Georgia today, confiscation is a form of additional punishment in the Criminal Code, and in the Civil Procedure Code, it is considered the basis for starting civil proceedings. It is necessary to distinguish between them, and it is also important to assess the issue of their compatibility with each other.
According to the Georgian Criminal Code, confiscation of property means free-of-charge confiscation of the object of crime and/or weapon, the object intended for the commission of a crime, and/or property obtained through crime for the benefit of the state.[24] This last definition appeared in the Georgian Criminal Code in 2005. According to the current edition, in each specific case, it is necessary to determine the object of the crime, the weapon, the item intended for the commission of the crime, and the property obtained as a result of the criminal act.[25] As we have already mentioned, the first part of Article 52 of the Criminal Code defines confiscation, and the second one talks about to whom this measure can be used. Confiscation of the object of the crime and/or the weapon or the thing intended for the commission of the crime means the confiscation of the property used for the commission of the intended crime in the possession or legal possession of the accused, the convicted person, for the benefit of the state.[26] The object of the crime and/or the weapon or the thing intended to commit the crime is confiscated by the court, for all the intended crimes stipulated by the Criminal Code, in the event that there is an object of the crime and/or a weapon or an item designed to commit a crime and their confiscation is necessary due to state and public necessity or the interests of protecting the rights and freedoms of individuals or to prevent new crimes.[27] According to this part of the law, the property can be confiscated from both the accused and the convicted. If we take into account that Article 52 of the Criminal Code is a substantive criminal law norm and, at the same time, an additional form of punishment, the question arises as to how much it is possible to punish a person against whom a guilty verdict has not been issued?! Obviously, the current version of the law contradicts itself, allowing additional punishment for the accused person.
2.2. Civil Process for Confiscation of Property
The Code of Civil Procedure of Georgia regulates filing a claim for confiscation and transfer to the State of property derived from racketeering activities, or property of officials, members of the ‘criminal underworld’, human traffickers, persons facilitating the distribution of drugs or property of persons convicted of a crime under Article 194 and/or Article 3311 of the Criminal Code of Georgia. A claim for confiscation and transfer to the State of property derived from racketeering, or property of officials, members of the ‘criminal underworld’, human traffickers, persons facilitating the distribution of drugs, or property of persons convicted of a crime under Article 194 and/or Article 3311 of the Criminal Code of Georgia may be filed by a prosecutor within ten years after a court ruling against the racketeer, the official, the member of ‘criminal underworld’, the human trafficker, the person facilitating the distribution of drugs or the person convicted of a crime under Article 194 and/or Article 3311 of the Criminal Code of Georgia has entered into force.[28] According to the Code of Civil Procedure a claim for confiscation and transfer to the State of property derived from racketeering may be filed against a racketeering group, a racketeer, a racketeer\u27s family member, a close relative or a person connected with the racketeer.[29] The above may be interesting and, at the same time, controversial. Still, this article serves to confiscate undocumented and illegal property from all those who obtained it due to committing a crime.
When we talk about the confiscation of property, it is important to distinguish between the confiscation of property as a form of additional punishment and the initiation of civil proceedings/lawsuits for the confiscation of property. It should also be noted here that since a person is accused, confiscation of property cannot be used as a form of punishment, and at this time, there is no reason to initiate a civil lawsuit. In this case, one more criminal procedure mechanism, seizure, ensures the seizure of the property that may be confiscated from the person in the future. According to Article 151 of the Criminal Procedure Code, as a coercive measure in criminal procedure, the court may, upon motion of a party, seize the property, including bank accounts, of the accused, of the person materially responsible for the accused person’s actions, and/or of the person related to the accused person, if there is information to suggest that the property will be concealed or destroyed, and/or the property has been obtained criminally.[30] The property seizure provided for by this Code shall also be applied in the case of preparation of one of the crimes provided for by Articles 323-330 and 3311 of the Criminal Code of Georgia or any other severe crime, as well as for their prevention if there is sufficient information to believe that the property in question could be used for the commission of a crime.[31]
This entry in the Criminal Procedure Code is preventive and prevents serious crimes such as terrorism and other related crimes. In the end, a seizure can be considered to carry such a preventive function of coercion.
2.3 Compliance of the Requirements of the Palermo Convention with the Georgian Legislation
The Palermo Convention requires States Parties to confiscate/seize property intended to commit acts criminalized by the Convention. In the Georgian Criminal Code and the Civil Procedure Code, attention is focused on two categories of actions criminalized by the Palermo Convention: the legalization of illegal income and crimes committed by organized groups (racketeering, membership in criminal underworld, etc.). It may be questioned whether this contradicts the requirements of the Palermo Convention. First of all, it should be noted that according to the Civil Procedure Code, any property may be seized if there is evidence that the property was obtained through criminal means. Second, Article 52 of the Criminal Code defines confiscation of property as a form of additional punishment that may be applied to a person convicted of all categories of crimes, including corruption and obstruction of justice. Thirdly, one limitation that remains is Article 3562 of the Code of Civil Procedure, which provides for filing a lawsuit only against persons convicted of the following crimes: Possession of racketeering property, official, member of the “criminal underworld”, human trafficker, facilitator of the distribution of narcotic drugs or Articles 194 and/or 3311 of the Criminal Code of Georgia. It turns out that civil proceedings cannot be initiated against persons convicted of obstructing the administration of justice based on confiscation of their property. Their property may be subject to seizure and confiscation of property.
International Cooperation for the Purpose of Confiscation/Seizure
3.1. International Cooperation for the Purpose of Confiscation under the Palermo Convention
The rise and nature of transnational organized crime have made close legal cooperation between countries necessary. Many states have chosen confiscation as a form of responsibility to fight crime. Its use is significant both for crime prevention and punishment.
According to the Palermo Convention, a State Party that has received a request from another State Party having jurisdiction over an offense covered by this Convention for confiscation of proceeds of crime, property, equipment, or other instrumentalities of this Convention situated in its territory shall, to the greatest extent possible within its domestic legal system: submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, give effect.[32] Submit to its competent authorities, with a view of
CAN CRIMES OF ECOCIDE COMMITTED DURING THE CONFLICT IN UKRAINE BE LEGALLY PUNISHED?
Get PDFThe conflict in Ukraine is not only taking a heavy toll on human lives but also significantly impacting the environment and wildlife. Many natural areas have suffered extensive damage, and numerous animal species face even greater threats. It is concerning that many ecosystems may never recover their former biodiversity. This environmental disaster, culminating in the destruction of the Kakhovka dam, prompts questions about whether such actions can be denounced as acts of ecocide. This article aims to provide an overview of the ecological and legal landscape regarding allegations of ecocidal acts committed during the Ukrainian War. To this end, the first section of the paper will outline a non-exhaustive list of potential ecocidal crimes that occurred during the conflict in Ukraine. Subsequently, we will examine the opportunities and limitations associated with applying the concept of ecocide as a crime during the war in Ukraine. Finally, we emphasize the necessity for reforming environmental law to incorporate the concept of ecocide as a crime.
Keywords: Ecocide, Environment, War in Ukraine.
Introduction
“Today, the Russian occupiers have committed the greatest crime of ecocide on Ukrainian territory, not only during this war, but for decades”,[1] Volodymyr Zelensky, following the destruction of the Kakhovka dam.
The war in Ukraine has certainly highlighted the fragility of the environment and its lack of protection in times of war by national and international law. The notion of ecocide, which has been debated for many years, has never been so much at the forefront of international law as it has been since the war in Ukraine.
The term “ecocide” originated in the context of armed conflict during the Vietnam War. During this conflict, the American army used Agent Orange, a defoliant that destroyed the forest, preventing the Vietnamese insurgents from taking refuge there. The massive use of Agent Orange led to the destruction of 20% of the Vietnamese forest, with disastrous health consequences, including cases of cancer and serious malformations in exposed individuals.[2] The term “ecocide” was first used by American biologist Arthur Galston in 1970.[3] He believes that ecocide constitutes a crime against humanity and advocates the establishment of a new international treaty to prohibit ecocide, which he defines as “the deliberate and permanent act of destroying the environment in which a people can exercise its chosen way of life”.[4]
A semantic analysis of this concept confirms Arthur Galston’s definition. Indeed, the term “ecocide” is composed of the prefix “eco-”, referring to the house, the habitat (oikos in Greek), and the suffix “-cide”, meaning “to kill” (caedo in Latin). It thus designates the most serious environmental damage resulting in irreversible destruction.
Currently, there is no universally recognized legal definition of ecocide.
According to the proposal for a Directive by the European Parliament and the Council concerning environmental protection through criminal law, which seeks to replace Directive 2008/99/EC, any action that results in “severe and widespread, or severe and long-term, or severe and irreversible damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, to ecosystem services and functions, or to animals or plants”[5] would qualify as ecocide.
According to the proposal put forth by Stop Ecocide International (SEI) to introduce a fifth crime within the Rome Statute, ecocide can be described as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”.[6]
To establish a comprehensive definition for the crime of ecocide, it is feasible to reference the definition of crimes against humanity outlined in Article 7 of the Rome Statute. Accordingly, ecocide could be defined as “any widespread or systematic action included in a list of offences which causes widespread, long-term, and severe damage to the natural environment, committed intentionally and with knowledge of such action”.[7]
The war in Ukraine has the potential to serve as a pivotal moment in the global acceptance of this concept, representing a significant advancement for environmental protection. Indeed, numerous environmental crimes have occurred, impacting not only Ukrainian territory but also the Black Sea region.
Therefore, it is essential to examine the legal mechanisms available for holding those accountable for acts of ecocide committed during the Ukrainian conflict.
To accomplish this, we will initially compile a non-exhaustive list of potential ecocidal crimes committed during the war in Ukraine (Section I). We will subsequently assess the legal opportunities and challenges associated with prosecuting such crimes (Section II), and ultimately, concentrate on the legal prospects concerning the crime of ecocide resulting from the war in Ukraine (Section III).
1. partial overview of potential ecocidal acts committed during the Ukrainian conflict
The conflict in Ukraine is causing severe environmental repercussions, with many of the environmental assaults falling within the scope of ecocide. This article examines specific instances illustrating potential ecocidal crimes during the Ukrainian war.
To begin, from a global perspective, as per data from the Ministry of Environmental Protection and Natural Resources of Ukraine in February 2023, nearly 500,000 hectares are under occupation or located in a war-affected area, and 2.4 million hectares of forest have been extensively cleared and require restoration.[8] Furthermore, ten national parks, eight nature reserves, and two biosphere reserves have also fallen under occupation.[9] Approximately 600 animal species and 750 plant species face the risk of extinction, including those listed on the Red List.[10]
More specifically, between February and July 2022, a distressing 5,000 dolphins perished in the Black Sea.[11] It is worth noting that the International Union for Conservation of Nature (IUCN) categorizes bottlenose dolphins and common dolphins inhabiting these waters as endangered. Noise pollution is believed to be a significant factor contributing to these fatalities. The presence of military vessels and submarines employing sonar for navigation, as well as missile launches and explosions can disrupt the cetaceans\u27 ability to navigate, locate food, and communicate with each other.
This comprehensive list of the environmental impacts stemming from the war in Ukraine underscores the pressing need for a more environmentally conscious approach in executing military operations, challenging the practices observed in past conflicts. It is crucial to contemplate the inclusion of combat operations carried out within conservation areas, like national parks, in the category of condemnable acts falling under ecocide, given their potential to inflict significant and enduring harm to the ecosystem.
Additionally, even though the intent of the conflict parties may not be to deliberately cause environmental damage within national parks, they are undeniably aware of the adverse consequences their actions have on nature. On the other hand, understanding the severe repercussions for marine wildlife, such as dolphin mortality resulting from submarine sonar, remains less clear. These distinctions warrant further examination in the context of potentially establishing ecocidal crimes.
Historically, international law conventions and norms did not safeguard civilians during wartime. However, the contemporary consensus acknowledges that these safeguards have evolved into an established norm, enforced through legal penalties for attacks on civilians. It is essential that a similar consideration be applied to the realm of environmental protection.
While this perspective may appear idealistic at present, much like the protection of civilians in the past, it is foreseeable that this approach will gradually gain widespread acceptance.
Secondly, the demolition of the Kakhovka hydroelectric dam on June 6, 2023, stands as the most conspicuous instance of ecocidal actions during the war in Ukraine. This destruction will lead to catastrophic and irreversible environmental repercussions, to the extent that Ostap Semerak, the former Ukrainian Minister of Ecology, has likened the situation to the most severe ecological catastrophe since Chernobyl.[12] The dam\u27s breach inundated farms, infrastructure, and land, carrying pesticides, chemicals, oil, sewage, deceased animals, and fish, along with debris from cemeteries.[13] Additionally, toxic materials from at least two animal burial sites potentially contaminated with anthrax may be in motion.[14] This disaster resulted in the demise of numerous animals, the disappearance of many individuals, and the potential displacement of over 100,000 residents.[15]
After the submersion of the Kakhovka hydroelectric turbines, approximately 150 tons of oil intended for the dam’s motors were carried away,[16] leading to water contamination. About 300 tons of lubricants[17] remain within the facility, potentially causing severe harm to the Black Sea’s flora and fauna, which, as described by Ukrainian authorities, is rapidly becoming a “garbage dump and animal cemetery”.[18]
This contamination of the sea, which was already one of the most polluted in Europe, will impact neighboring countries such as Romania, Bulgaria, Turkey, and Georgia, which are both economically and ecologically reliant on the Black Sea.
Reconstruction will require several years, and some damage may be irreversible. The flooded farmland may never regain its former productivity, and the recovery of affected plant and animal populations will also be time-consuming, with certain species facing potential extinction.
Furthermore, the destruction of the Kakhovka hydroelectric dam has amplified the nuclear threat in Ukraine. While Ukraine’s Zaporijjia nuclear power plant has kept its six reactors offline for months, it is crucial to maintain continuous cooling to prevent a potential accident. However, following the Kakhovka dam’s destruction, the primary cooling basin, supplied by the Kakhovka reservoir, has fallen below the required 12.7 meters (11.27 meters in June 2023).[19] Although there are backup basins with sufficient reserves for several months, the risk of an accident looms if Russian-Ukrainian cooperation on water supply to the site were to cease.[20]
This concise and non-comprehensive report illustrates the scale of environmental harm resulting from the conflict in Ukraine and the numerous instances of ecocidal acts being committed. Additional damage is anticipated in the foreseeable future. These transgressions necessitate an adequate legal response.
2. Examining the legal opportunities and challenges in implementing the concept of ecocidal crimes
Several impediments hinder the efficiency of the justice system in addressing ecocidal crimes, thereby limiting a comprehensive approach to their adjudication. Both domestic law (A) and international law (B) have inherent constraints when combating ecocidal crimes.
2.1. The challenge lies in harnessing the existing domestic legal framework comprehensively to address ecocidal crimes
The concept of ecocide has not yet achieved global acceptance. However, certain nations have incorporated it into their legal systems. Vietnam, in 1990, became the first country to incorporate this concept into its criminal code, providing the following definition: “Those who, in peace time or war time, commit […] acts of ecocide or destroying the natural environment, shall be sentenced to between ten years and twenty years of imprisonment, life imprisonment or capital punishment”.[21] Since that time, approximately a dozen states have embraced this concept, particularly countries in the former USSR, including Armenia,[22] Georgia,[23] Belarus,[24] and notably Russia and Ukraine, whose definitions of ecocide closely resemble one another. According to Article 358 of the Russian Criminal Code, ecocide involves: “Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, [-] shall be punishable by deprivation of liberty for a term of 12 to 20 years”.[25] In accordance with Article 441 of the Criminal Code of Ukraine, ecocide encompasses the following: “Mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, - shall be punishable by imprisonment for a term of eight to fifteen years”.[26]
However, it is essential to recognize that this crime is not acknowledged in European Union member states. While the European Parliament has recently put forth a proposal to incorporate ecocide as a crime in European legislation,[27] this proposal is anticipated to encounter various challenges when presented before the Council of the European Union, as some member states are reluctant to acknowledge such a crime.[28] A notable example is France, which has declined to recognize ecocide as a crime, downgrading it to a mere ecological offense lacking substantial legal standing.[29]
However, the mere inclusion of the concept of ecocide within a country’s legal framework does not automatically guarantee its comprehensive application.
Even though Article 441 of the Ukrainian Criminal Code categorizes ecocidal acts as crimes against peace and global security, the international aspect of the conflict and the challenges associated with collecting on-site evidence introduce complexity into legal proceedings within national courts.
The same holds true for the nations neighboring the conflict, especially those along the Black Sea, which could face unparalleled environmental and economic harm due to the Kakhovka dam’s destruction. Therefore, even if Georgia acknowledges ecocide as a crime during times of peace or war,[30] there is a lack of evidence to pinpoint the culprits, as both sides accuse each other.
Hence, turning to international criminal justice appears to be an essential and indispensable course of action.
2.2. International Law provides only partial avenues for adjudicating ecocidal crimes
While there exist multiple options for prosecuting Russia or Ukraine by applying specific provisions of International Law, the absence of global acknowledgement of the crime of ecocide presents a hindrance to the comprehensive prosecution of such crimes.
First and foremost, within the realm of international criminal law, there is a possibility to prosecute Russia or Ukraine for war crimes under the Rome Statute of the International Criminal Court (ICC). It is worth noting that Russia and Ukraine have never ratified the Rome Statute, thus barring the ICC from prosecuting individuals within Russia or Ukraine. Nevertheless, these individuals may face arrest if they are present on the territory of a state recognizing the ICC’s jurisdiction. However, Ukraine has submitted a declaration acknowledging the ICC’s jurisdiction, as per Article 12, paragraph 3 of the Rome Statute, for an indefinite period. This declaration pertains to punishing crimes that have been ongoing across its territory since February 20, 2014.[31] Consequently, Russian nationals within Ukrainian territory could potentially face arrest and conviction.
According to the Rome Statute of the International Criminal Court, article 8, 2. (b) (iv), it constitutes a war crime to: “Intentionally launching an attack in the knowledge that such attack will cause […] widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
The requirement of “clearly excessive” damage inherently demands a subjective evaluation of the resulting harm. Applying this article to most instances of environmental destruction in Ukraine may prove challenging, with the notable exception being the destruction of the Kakhovka dam. This dam was constructed with the ability to withstand missile strikes. Consequently, the explosion likely occurred within the Russian-occupied Kakhovka power plant[32], implicating Russia in this act of destruction. Thus, if Russia is found responsible for the Kakhovka dam’s demolition, it could be argued that the environmental damage is conspicuously excessive, considering the extent of the damage in comparison to the anticipated military advantage – namely, obstructing the Ukrainian army’s progress on Ukrainian territory by creating extensive marshland across tens of thousands of hectares.
Consequently, if substantial evidence is presented to establish Russian culpability in the Kakhovka dam’s destruction, Article 8, 2(b)(iv) of the Rome Statute may be invoked before the ICC. However, it should be noted that if the investigation reveals Ukraine\u27s responsibility instead of Russia’s, the same article will apply similarly.
Another potential approach that could be considered involves incorporating environmental damage in Ukraine as a factor contributing to the definition of the broader crimes outlined in the Rome Statute.[33]
From this perspective, environmental harm could serve as a basis for prosecuting war crimes, which encompass various actions, including attacks on civilian populations, assaults on civilian infrastructure, extensive property destruction, and the intentional initiation of attacks with the awareness that they will result in harm or casualties among civilians.
Additionally, environmental damage could be utilized for the prosecution of crimes against humanity, encompassing inhumane actions carried out as part of a widespread or systematic assault on any civilian population. It is worth noting that in 2010, the Pre-Trial Chamber of the International Criminal Court determined that the destruction, pollution, and contamination of wells by Sudanese government forces aligned with a genocidal policy targeting civilian populations in the Darfur region.[34] This ruling warranted the issuance of an arrest warrant for President Omar Al-Bashir.
Nonetheless, this human-centered approach fails to acknowledge the right to environmental protection, as sanctions are imposed not based on the harm inflicted on the environment but rather on exploiting the environment to harm human beings. Hence, it appears imperative that the conflict in Ukraine should serve as a catalyst for the international adoption of the crime of ecocide to provide effective environmental protection.
3. The necessity for environmental law reform to encompass the crime of ecocide
To establish a robust legal framework for prosecuting ecocidal crimes, there is a requirement for legislative enhancements on three fronts.
First and foremost, at the national level, the objective is to advocate for integrating the concept of the “crime of ecocide” into the domestic laws of states, all the while embracing the principle of universal jurisdiction.[35] This shift would assign the national judicial system the duty of addressing the international crime of ecocide, consequently limiting the avenues for individuals accountable for this crime to seek shelter in other countries, a situation already applicable to crimes against humanity.
Secondly, on the European level, the scope of the European Public Prosecutor’s Office should be expanded by establishing a “European Green Public Prosecutor’s Office” to address severe environmental infractions. This would necessitate enacting a European directive that precisely enumerates the crimes in question. The realization of this “European Green Prosecutor’s Office” might be achieved by revising the November 19, 2008, directive on environmental crime,[36] in which the European Union Parliament endorsed the incorporation of ecocide into European legislation. However, as mentioned at the outset of this article, the process of adopting this concept is still beset by challenges and could be protracted.
Finally, from a global perspective, establishing an international criminal entity tasked with addressing cases of ecocidal crimes would complement national judicial systems, particularly in cases where these systems are reluctant or unable to conduct trials independently. This responsibility could be entrusted to the International Criminal Court or an independent judiciary.
The Rome Statute of the International Criminal Court currently encompasses four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.[37] Numerous legal experts and environmental organizations are actively working towards securing recognition of ecocide as the fifth crime subject to prosecution by the ICC.
For ecocide to attain recognition as an international crime, four distinct conditions must be met.[38] Firstly, one of the 123 States that have ratified the Rome Statute must initiate a proposal for such an amendment. Second, a majority at the annual assembly of the International Criminal Court must endorse the consideration of the amendment. Subsequently, for the amendment to be adopted, a two-thirds majority of ICC States Parties must vote in favor of it. Lastly, each country must ratify the modified statute. Consequently, ecocide would become a crime in those nations where it has been ratified, along with the principle of universal jurisdiction, enabling any ratifying nation to apprehend a foreign national who has committed an ecocidal crime abroad on its territory. This mechanism would facilitate the prosecution of those responsible for ecocidal crimes during the war in Ukraine.
Conclusion
The crimes of ecocide committed during the war in Ukraine are numerous and have resulted in
საქართველოს სისხლის სამართლის სისტემის ზოგიერთი ლოგიკური პრობლემა
Get PDFThe author of the article titled „Some logical problems of the criminal justice system“ discusses the basis for determining the logical problems of criminal responsibility, which has been proposed in the edition of 1999 of the Criminal Code of Georgia. He analyzes the logical errors, which are typical for the German criminal normative theory and that are reflected in scientific and dogmatic studies, partly inherent in the Georgian criminal legislation. In the base of studies carried out by author, the new definition of the crime concept was developed which is more in line with the provisions of the Criminal Code of Spain
მომეტებული ტექნიკური საფრთხის მქონე საწარმოებში დასაქმებულთა შრომის დაცვისა და უსაფრთხოების სამართლებრივი საკითხები
Get PDFLegal issues on employee labor protection and safety has been a topic of continuous discussion in many countries despite their political and social-economic development. Even within the boundaries of a country, taken separately, there is no homogenous attitude among scholars of this field of law regarding the legal ways of protecting and ensuring the safety of employees by the law as much as possible
სასამართლოე ქსპერტიზის საკანონმდებლო პრობლემები
Get PDFIn the given paper the research of legislative regulations of forensics is presented. As the problem is rather difficult and complex, we have singled out that range of problems which is the main backbone of the forensic system The research has showed that regulation of issues related to forensics is accomplished on the basis of regulatory legal acts and different legal norms
Towards a harmonised eac tax sysyem: curent status, challenges and way forward
Get PDFUnder Article 79 of the EAC Treaty, the Partner States have undertaken to harmonize and rationalize investment incentives to promote the Community as a single investment area while avoiding double taxation. Article 83 of the same Treaty states that the Partner States have committed themselves to adjust their tax policies to eliminate tax distortions. These provisions show the extent to which the EAC Partner States are willing to advance with tax integration as part of comprehensive regional integration. This approach is welcomed, as scholars generally agree that full regional integration cannot be achieved with- out tax integration. In this sense, tax harmonization is seen as a sure path to tax integration, a driver for effective regional integration. It is unfortunate, however, that tax harmonization in the EAC faces several challenges. Some causes of the challenges are legal, such as differences in legal systems, while others are geopolitically motivated. This paper discusses where the EAC currently stands in relation to tax harmonization. Starting with a theoretical framework, the paper focuses on the current practical aspects of tax harmonization in the EAC. The paper, therefore, highlights the existing discrepancies alongside the challenges in building a harmonized tax system in the EAC. The paper identifies three ways out de jure harmonization through traditional law-making by the legislature, de facto harmonization through judicial law-making processes, and tax coordination where tax harmonization does not work.
Keywords: EAC, tax harmonization, tax coordination, regional integration
1. Introduction
The East African Community (EAC) is one of the eight regional integrations on the African continent recognized by the African Union.[1] It is important to note that several elements set the EAC apart. First, the EAC is the only African regional integration with the vision of creating a political federation.[2] Second, there is widespread agreement among scholars that the EAC is the oldest regional integration in Africa. This view is based on various initiatives taken in the 1900s in the British East African colonies, i.e., Kenya, Uganda, and Tanzania. These initiatives include, for example, the construction of the Kenya - Uganda Railway (1897-1901), the establishment of the Customs Collection Centre (1900), the East African Currency Board (1905), the Postal Union (1905), the Court of Appeal for Eastern Africa (1909), the Customs Union (1919), the East African Governors Conference (1926), the East African Income Tax Board (1940), and the Joint Economic Council (1940).[3] A more formal EAC was established in 1967 when Kenya, Tanzania, and Uganda signed an East African Cooperation Treaty. Unfortunately, this community collapsed ten years after its formation, i.e., in 1977, for various socio-economic and political reasons.[4] A new EAC was re-established two decades after the collapse of the old EAC, in 1999, when the three original Partner States again signed a treaty re-establishing the EAC, which came into force on 07 July 2000.
Currently, the EAC consists of seven Partner States, including the recently admitted Democratic Republic of Congo (DRC).[5] Today, the EAC covers an area (including water) of 4.8 million sq. km, with a population of 283.7 million in 2021, and a GDP of $305.3 billion in 2021.[6] The objective of the EAC is to develop policies and programs aimed at broadening and deepening cooperation among the Partner States in the political, economic, social and cultural, research and technological, defense, security, and legal and judicial fields, for mutual benefit.[7]
Although the EAC is considered the most active and successful regional integration in Africa,[8] it is not the world\u27s most advanced regional economic integration. Indeed, in terms of age, the EAC rivals the European Union (EU), which was established in 1957, and formalized in 1992 with the Maastricht Treaty.[9] To date, the EU has a fully functioning customs union, a common market known as the single or internal market, a monetary union, and is on its way to becoming a political federation. Today, EU citizens are much closer than ever before, and it becomes difficult for a foreigner traveling across the EU in a train or car to know that they have crossed the border from one country to another.
In contrast, despite the Common Market Protocol signed in November 2009,[10] an EAC citizen has to go through several immigration protocols when traveling from one country to another. This costs time and causes stress due to differences in language, culture, currency, etc. These discrepancies are partly because there are no harmonized procedures,[11] among others. In this context, the question arises whether the EAC is integrated? If so, to what extent? When will integration be fully achieved? etc.
The aim of this paper is not to answer all these questions about the effectiveness of integration in the EAC. It is about some legal aspects of integration. More specifically, this paper is about the harmonization of laws as one of the drivers of full integration. In this context, the focus of this paper is on tax harmonization.
Therefore, the problem examined herein is the current extent of tax harmonization in the EAC. This general problem gives rise to specific research questions, such as the current state of tax harmonization in the EAC, the challenges of tax harmonization in the EAC, and the possible ways to overcome these challenges.
In preparing this paper, I have extensively used a qualitative methodology based on the famous doctrinal approach to legal research. To this end, I have thoroughly reviewed the available documents on tax harmonization, focusing on the EAC. I have also looked at some tax cases from the national courts. The data used herein are divided into primary and secondary sources. Primary sources were first-hand information, legal instruments, court decisions, etc. Secondary sources consisted of scholarly research articles, books, dissertations, etc.
This paper is divided into six sections. I introduce the paper in the first section, which is current. In the second section, I set the framework for the research and discussion by outlining the importance of tax harmonization from a theoretical and practical perspective. In the third section, I give a brief overview of the current state of the practical aspects of tax harmonization. In the fourth section, I reflect on the challenges for the envisaged tax harmonization, while in the fifth section, I formulate suggestions for the way forward. In the sixth and final section, I draw a conclusion.
2. Setting the scene: the relevance and considerations for tax harmonization
Harmonization of tax systems is widely advocated in the literature as a pillar for achieving a fully functioning regional integration.[12] In the case of the EAC, several legal instruments touch upon tax harmonization as part of the overall objective of regional integration.[13] The question here is whether there has been a case in practice that argued for harmonization of tax systems in the EAC. I first address the theoretical aspect of tax harmonization in the EAC in the following subsections. I then shift the focus to the practical aspect of tax harmonization in the EAC through a case that argued for harmonization of tax systems in the EAC.
2.1. The need for harmonization in theory
Tax harmonization is seen as a prerequisite for economic integration,[14] and part of regional integration is economic integration.[15] In this way, regional integration cannot be achieved without tax integration, as regional integration depends on tax integration, and the former remains unachievable until the latter is achieved.[16] In other words, tax harmonization, economic integration, and regional integration are closely linked, as tax harmonization, and economic integration constitute essential components of regional integration. In this respect, harmonization of tax systems in a regional community is important, if not necessary, to achieve fully functioning regional integration.[17]
As far as the EAC is concerned, the EAC Treaty contains a considerable number of provisions aimed at harmonizing tax systems in the Community. This is evident from Article 75 of the Treaty, in which the Partner States have agreed not to impose new duties and taxes on products traded within the EAC or to increase existing ones. Under the same provision, the Partner States have also undertaken not to enact legislation or apply administrative measures that could directly or indirectly discriminate against the same or similar products of other Partner States.[18] This is a standstill clause that provides a good starting point for the harmonization of tax systems by firstly immobilizing existing practices.
Similarly, Article 79 of the Treaty provides for the commitment of the Member States to ensure the development of the industrial sector. To this end, the Partner States have undertaken to further harmonize and rationalize investment incentives within the Community, including those relating to the taxation of industries using, in particular, local materials and labor, in order to promote the Community as a single investment area.[19] In the same vein, Article 85 of the Treaty expresses the commitment of the Partner States to harmonize the taxation of capital market transactions.[20]
Similarly, Article 82 of the Treaty underlines the obligation of the Partner States to cooperate in monetary and fiscal matters. To this end, they undertake to remove obstacles to the free movement of goods, services, and capital within the Community.[21] In the same spirit, Article 83 of the EAC Treaty provides for harmonizing monetary and fiscal policies. Under this provision, the EAC Partner States undertake to adjust their fiscal policies and net domestic credit to the government to ensure monetary stability and sustainable economic growth.[22] In addition, the EAC Partner States undertake to harmonize their tax policies to eliminate tax distortions and thus achieve a more efficient allocation of resources within the Community.[23]
As part of the harmonization of tax policies, in conjunction with the implementation of Article 75 of the Treaty establishing the EAC Customs Union, the EAC Partner States adopted the East African Community Customs Management Act in 2004, which was last amended on 8 December 2008. This Customs Union is governed in detail by a Protocol whose roots lie in Article 75 of the Treaty. So far, the Customs Union has been instrumental in bringing the EAC Partner States closer together.
All these provisions show how eager the EAC is for tax harmonization. Given the importance of tax harmonization for developing regional integration systems, it is imperative to reflect on the practical side of tax harmonization in the EAC.
2.2. The need for harmonization in practice
Based on the above description of the theoretical assertions about the necessity and legal support for tax harmonization in the EAC, the question now arises about the practical aspects of harmonizing tax systems in the EAC. The question here is whether tax harmonization is essential or not.
To show the case, I refer to a recent case in Rwanda where one party invoked the EAC Common Market Protocol application and referenced Kenyan case laws. This occurred when a law firm challenged a VAT levied on exported services. The firm pointed out in its submissions that Rwandan law does not clearly define exported services. Therefore, the firm requested that the court refers to Article 1 of the General Agreement on Trade in Services (GATS), which almost mirrors the idea of Article 16 of the EAC Common Market Protocol (EACCMP).[24] Article 1(2) of GATS reads as follows:
For the purposes of this Agreement, trade in services is defined as the supply of a service: (a) from the territory of one Member into the territory of any other Member; (b) in the territory of one Member to the service consumer of any other Member; (c) by a service supplier of one Member, through commercial presence in the territory of any other Member; by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member.
Article 16(2) of the EACCMP states the following:
The free movement of services shall cover the supply of services: (a) from the territory of a Partner State into the territory of another Partner State; (b) in the territory of a Partner State to service consumers from another Partner State; (c) by a service supplier of a Partner State, through commercial presence of the service supplier in the territory of another Partner State; and (d) by the presence of a service supplier, who is a citizen of a Partner State, in the territory of another Partner State.
In addition, the firm requested the court to refer to the case law of the High Court of Kenya in Commissioner of Domestic Taxes v. Total Touch Cargo Holland - Income Tax Appeal No. 17 of 2013 (para. 30), where the judge held as follows:[25]
I am in full agreement with the above finding by the tribunal. The location where the service is provided does not determine the question of whether the service is exported or not. The test is the location (or place) of use or consumption of that service. Therefore, the relevant factor is the location of the consumer of the service and not the place where the service is performed.
That party also referred to the case of Coca-Cola Central East and West Africa Limited v. The Commissioner of Domestic Taxes [Tax Appeal No. 5 of 2018] dated 31/03/2020, where the Kenya High Court applied the destination principle.[26]
In contrast to the Kenya High Court, the Rwanda Commercial Court ruled in RCOM 01492/2019/TC of 20/03/2019 between ENSAfrica Rwanda Ltd and the Rwanda Revenue Authority that the relevant factor is not the location (or place) of the consumer. Even if the consumer resides abroad, but the service was consumed in Rwanda, the VAT is due.[27] In this case, the court applied the consumption principle.
The decision RCOM 01492/2019/TC was appealed in case RCOMA 00350/2019/HCC. In appeal, ENSAfrica argued that an exported service should be considered as a service supplied to a non-resident, regardless of the place or location of consumption of the service.[28] The appellant relied on Article 1(2)(b) GATS, to which Rwanda is a party, and Article 16(2)(b) of EAC CMP, to which Rwanda is also a party. The appellant also referred to the Kenya case law in Commissioner of Domestic Taxes v. Total Touch Cargo Holland, which confirmed that the OECD’s International VAT/GST Guidelines are internationally recognized principles that should be followed. The Commercial High Court upheld the Commercial Court’s decision, i.e., it confirmed that the destination principle should apply.
However, it seems that this position was discussed and decided differently in RCOM 01512/2020/TC.[29] In paragraphs 18 and 19, the Court appears to have accepted the application of the destination principle. This was also confirmed by the Commercial High Court in case RCOMA 00017/2021/HCC, which stated in paragraph 31 that it is important to consider where the service recipients are located, whether in Rwanda or abroad. The Court further stated in paragraph 32 that whether or not the service was consumed in Rwanda or where it was provided was irrelevant. The Court further confirmed that the fact that the service was provided to a person resident abroad is sufficient to exempt VAT. In this sense, the Commercial High Court of Rwanda now appears to apply the destination principle.
At this point, it should be noted that the Rwandan courts\u27 position is not yet clear. In some decisions, the consumption principle has been applied, and in others, the destination principle. The current situation in the Rwandan court seems to be in contrast to the Kenyan High Court, which applies the destination principle.
From this, one can partly conclude that VAT on exported services may be levied differently in the EAC, as the Kenyan judicial view may differ from the Rwandan one. On the one hand, this would not be a problem given the principle of tax sovereignty, whereby each country is sovereign to adopt a tax system it deems best in light of its socio-economic and political factors.[30] On the other hand, however, it seems problematic when regional integration aspects are taken into account.
As stated by the Supreme Court of Rwanda in the case RS/INTL/SPEC 00001/2020/SC of 02/08/2022,[31] this Court confirmed that since Rwanda signed and ratified GATS and EAC CMP, these legal instruments have been incorporated into the laws of Rwanda as provided for in Article 95 of the Constitution of the Republic of Rwanda.[32] The same should apply mutatis mutandis to all EAC Partner States that have signed and ratified EAC CMP. Therefore, EAC Partner States should apply EAC CMP as part of their legal instruments. Thus, the court decisions of the EAC Partner States must also be harmonized to a certain extent.
3. Current status of tax harmonization in the EAC
Four elements can be used here to discuss the current state of tax harmonization in the EAC: tax rates, tax bases, tax dispute resolution, and tax treaties. These elements have been chosen because they are inherent parts of a tax system. The focus of this section is on the differences between these four elements. Nevertheless, the section ends with a discussion of an area of tax law quasi-harmonized in the EAC.
3.1. Tax rates
Apart from customs duties, which are discussed in the following sub-section, there is no harmonization of tax rates in the EAC. This is epitomized by the fact that each EAC Partner State has its tax rates concerning different taxes payable. For some taxes, there are even significant differences in tax rates. This is the case, for example, with the withholding tax on dividends. While Kenya levies this tax at 5%, it is 15% in Uganda, 10% in Tanzania, and 15% in Rwanda.[33] Another example is the withholding tax on royalties. For this tax, the rate in Rwanda is 15%, while Uganda levies 6%, Tanzania 15%, and Kenya 5%.[34] The VAT rates in the EAC also vary, as Kenya charges 16% in contrast to the standard rate of 18% in the other countries.[35]
3.2. Tax bases
With regard to tax bases, the situation is the same as for tax rates. Each EAC Partner State defines the tax base for each tax payable independently of the definitions of the others. Not only the tax base per se, but also some details related to the tax base differ. A typical example is the VAT registration requirements, where there are differences in the thresholds required. In Uganda, for example, the annual threshold for mandatory VAT registration is UGX 50 million (about USD 13,300).[36] In Kenya, it is KES 5 million (about USD 41,250), while in Tanzania, it is TZS 100 million (about USD 42,800).[37] In Burundi it is FBU 100 million (about USD 48,300),[38] while in Rwanda it is FRW 20 million (about USD 19,050).
3.3. Tax disputes
Concerning the resolution of tax disputes, this area is also not harmonized, as each EAC Partner State has its methods of resolving them. For instance, some EAC Partner States have established tax appeal tribunals that hear tax cases at first instance. This is the case in Kenya, Uganda, and Tanzania. In others, such as Rwanda, such cases fall under the jurisdiction of the commercial courts.
3.4. Double taxation treaties
Another case that can be used to assess the situation of tax harmonization in the EAC is the area of double taxation avoidance agreements. All EAC Partner States have signed various double taxation treaties, but the number and counterparties differ. Regarding the number, some Partner States have signed a large number of tax treaties, such as Kenya with 15,[39] Rwanda with 12,[40] and Tanzania and Uganda with nine each;[41] while others have signed only a few, such as Burundi, which only recently ratified the EAC double taxation avoidance agreement.[42] Differences can also be observed in the states with which the EAC Partner States have signed the treaties. The lack of harmonization is also evident in the EAC double taxation avoidance agreement. This Agreement was signed on 30 November 2010 by the then five EAC Partner States, namely Burundi, Kenya, Rwanda, Tanzania, and Uganda, to avoid double taxation and prevent fiscal evasion with regard to taxes on income. The entry into force of this Agreement is governed by Article 30(1), which states that the Agreement shall enter into force on the date of the last notification of the ratification process with respect to partners’ domestic procedures. To date, almost 12 years later, the Agreement has not entered into force as it has only been ratified by Kenya, Rwanda, Uganda, and Burundi.
Without belittling the above differences, the EAC has a green area of tax harmonization. This is the area of customs duties governed in the EAC by the EAC Customs Management Act of 2004, amended in 2007. Details on the current status of customs duties in the EAC are given below.
3.5. Quasi-harmonised management of customs duties
The only tax aspect that is quasi-harmonized in the EAC concerns customs duties. The EAC has established a customs union, as provided for in Article 75 of the Treaty. All EAC Partner States signed the Protocol establishing the Customs Union, and the EAC Customs Union Act was gazetted in 2004. This was amended in 2007 to include the accession of Rwanda and Burundi. According to Article 110(1) of the East African Customs Management Act (EACMA), all EAC Partner States apply the same import duty rates. The tax base of import duties is also harmonized, and the tax bases are the same in the EAC. This means that a product from outs
ასაკოვანი ქალები და გენდერული პერსპექტივის ინტეგრირება დასაქმების პოლიტიკაში
No full textThe main challenge in creating dignified living conditions for older women is employment. If the employment process of older women is not properly regulated, they will lose the opportunity to maintain their health and well-being. Unpaid domestic work and discriminatory stigmas have a major impact on employment. Social security, which appears in the form of a post-employment (funded or state) pension, determines the economic status of older/eldest women. Based on the above, the research on the issue of employment should include an analysis of the issue of stigmas, gender perspective and employment issues, hence proposing legislative changes to the state for favourable conditions for older women. In order to develop effective state policy, the article aims to analyse the international documents and the practice of the State of Israel to discuss the employment of elderly women in the central core of the state policy.
Keywords: decent Living of older women, employment policy, discriminatory stigmas
Introduction
Back in 1996, US Senator Carol Moseley-Braun of Illinois, in her essay "Women\u27s Retirement Security”, noted that reducing the gender gap (index of disparity) and ultimately closing the disparity is essential to improving real retirement security.[1] In order to eliminate the mentioned difference, it is necessary to recognise the caregiving activity of women at the legislative level, and at the same time, the state should develop an effective pension policy in parallel with the employment process and the work process. Senator Carol has likened retirement security to a three-legged stool[2] - social security, private pensions, and personal savings form the basis for a person to receive income later in life. The democratic world, in the Universal Declaration of Human Rights adopted in 1948, loudly affirmed its belief and respect for basic human rights as a whole and highlighted human dignity and equality principle as one of the fundamental rights among other basic rights based on which every state strives to promote social progress and to create a better standard of living for the people and citizens within its jurisdiction.[3] "The Declaration has inspired many newly independent states and new democracies in the process of forming and creating constitutions. It is the criterion and measure of how we define, or how we should define, what is good and what is bad."[4] Decent living conditions are a broad concept that crosses several human rights articles at the same time and combines several values. In particular, the first article of the Universal Declaration states that all human beings are born free and equal in dignity and rights. The declaration\u27s 22nd, 23rd, 24th, and 25th articles appear as reinforcing norms of dignity and dignified existence. The aforementioned articles protect both older women and people of any age and gender, and if we rely on Article 28, everyone has the right to a social and international order to exercise the freedoms mentioned in the declaration fully. In the state, the national government is obliged to implement such a state policy to eliminate discriminatory and unfavourable conditions among people.[5] The above-mentioned articles of the Universal Declaration of Human Rights combine several values and are significant. In particular, social security is a necessary factor for maintaining dignity, which includes the free and full development of a person, which is significantly violated in the presence of age and gender discrimination against older women. In addition, the unity of these values includes the rights to a favourable (supportive) working environment, dignified human existence (economic status), labour and unemployment protection, which elderly women cannot fully use in the presence of employment difficulty and an unregulated informal economy. Ultimately, according to Article 25 of the Declaration, everyone has the right to a standard of living adequate for their health and well-being. This includes both the period of unemployment and old age. However, if the employment process for older women is not fairly regulated, they will lose the opportunity to maintain their health and well-being. The main challenge in creating decent living conditions for older women is employment.[6] The purpose of the research is to analyse the international documents and the practice of the State of Israel to discuss the issue of employment of elderly (older) women in the main core of the state policy in order to develop effective state policy and legal regulations.
Older women\u27s employment, gender perspective, and discriminatory stigmas
It should be noted that unpaid domestic work and discriminatory stigmas have a major impact on employment. In addition, social security, which appears in the form of a post-employment (cumulative/private or state) pension, determines the economic situation of older women. Based on the above, research on the issue of employment should include an analysis of stigmas, gender perspectives, and employment.
As noted in the INSTRAW publication “Ageing in Gendered World Women\u27s Issues and Identities:" ageing, as a stage of development, is a challenge for women. In this period of life, women should be able to cope creatively with new opportunities. The social consequences of stereotyping elderly women should be recognised and eliminated. Subsequent meetings on ageing began to emphasise the integration of older persons into the life of society, regarding them not as a burden of productive members of society but as creative and productive members in their own right. Women, who because they live longer, represent the majority of older people in almost every country, are a particularly neglected resource in their elder years.”[7]
According to international studies, women generally live longer than men due to biological and behavioural advantages, but women\u27s longer lives do not necessarily mean healthier lives.[8] It is a fact that only women experience the potentially negative consequences and risks associated with the health and psychological state of pregnancy and childbirth. Further, existing gender inequality is expressed in terms of income and employment. The mentioned gender inequality originates from when a woman is devoted to childcare, child-rearing, and family work, and if we go deeper, the result of the mentioned time is the formation of the next generation. Moreover, in response, women remain discriminated against both from an economic point of view (less accumulated pension, less income, lower position) and a moral point of view. [9]
A major challenge for health systems is likely to be meeting the needs of older women, as they live longer than men and represent a growing proportion of all older people.[10] “At first glance, longer life expectancy is no doubt a sign of progress, which is the result of increasing wealth and access to medical care all over the world according to relevant percentages. When you look at this picture from one point, it is tempting to think that the problem of women in poverty is gradually and moderately reduced, but unfortunately, this is a false impression. When you come closer and closer to this mosaic, you see a lot of problems regarding older women and a growing number of them without the growth of the economy and without changing the world\u27s perception. Stereotypes bring devastating effects on older women and for the world as well.”[11] Therefore, the state should start preparing to prevent cases of age-related discrimination. Caring for older women involves not only strengthening the health system but also pension and tax reform, which includes access to employment and related pension and social protection. By creating conditions for an active, healthy life, older women will be allowed to participate fully in the development of society.
Appropriate legal recognition of older women\u27s labour resources, economic empowerment of older women, and reasonable access to public employment services may reduce gender inequality. According to the national legislation of Georgia, women of retirement age can be considered in the category of older (elderly) women. The retirement age for women in Georgia is set at 60 years.[12]
The social security and state assistance of the State of Israel has a significant impact on the economic empowerment of older women. Israeli legislation recognises the contingent of unemployed women aged 50+ to 67 as vulnerable and a priority group for receiving benefits. The vision of the State of Israel in the development of financial support programs for older women, recognition of the rights of older women, and their regulation at the legal level can be appropriate for Georgia as well. By analysing the Israeli state policy regarding a specific age group of unemployed women, it is possible to define older women by age categories. It is worth noting several directions of social security and state assistance of the State of Israel:
The right of unemployed women aged 57-67 to receive state financial assistance.[13] It is also important that those women who have completed professional training courses be encouraged by the high percentage of allowance. The state\u27s financial support for unemployed women at a particular age, when their skills are undergoing transformation, is an excellent motivator for older women to create decent living conditions and feel like a necessary asset to society.[14]
The state has an obligation to grant a pension to a 62-year-old female citizen. However, incentives (benefits) and assistance for elderly women are not cancelled for women who have reached the age of 67.
As of January 2022, the amount of work and non-work income has increased, in which case an Israeli citizen will be able to simultaneously use old age benefits, which start after the retirement age, namely from 70 years.[15] As of today, the retirement age for women under Israeli law is 62, although there will be a gradual change in the retirement age for women from 62 to 66.[16]
The National Insurance Institute pays monthly assistance to families with children under the age of 18. The allowance is aimed at helping families with the costs of raising children, and its amount does not depend on the family\u27s income. This significantly helps women’s social and economic empowerment, easing their burden. If we rely on the reasoning that older women often become caretakers of young children in their families by their own will or by necessity due to a lack of financial resources, this allowance allocated by the Israeli state can be considered as respect, compensation, and recognition of their work by the state.[17]
According to the March 20, 2023 interview of Mr Matan Hammou from the Israeli Ministry of Labor, that is the lead director of elderly employment (the person responsible for the advancement of special populations in the labour market) (recorded by scientist Irina Batiashvili), the analysis of the policy of employment of the elderly in Israel:
Employment has far greater effects and various connections and should not be seen only as a source of income. An employed person considers himself an active member of society and does not aspire to actively receive social protection or actively use social and health services.
The specificity of the issue of older women is related to the problem of "ageism", how employers look at the policy of hiring new staff. For example, we are looking for a young and energetic staff for a new and dynamic company. This means that as people get older, they are neglected, and at the same time, negative stigmas force the elderly to miss employment opportunities/earning opportunities. From the interview of the Senior Manager of Unique Populations Recruitment of the Ministry of Labor of Israel (Population Employment Administration, Work office), it can be seen that the percentage of employment of 45-year-olds is decreasing sharply. As people get older, it becomes harder for them to get back into the labour market. For example, if a young person can find a new job in 3-4 months, this opportunity becomes much more difficult for an older person. At the age of 54, there is a high probability that an unemployed, elderly person will not be able to return to the labour market. This affects part of the pensions because the pension system in Israel is similar to the accumulation system (the successive increase of the pension depends on the employee\u27s percentage investment).
Therefore, Israel decided to strengthen its employment policy and invest in reintegrating the elderly, especially older women, into the labour market. Israel, therefore, decided to invest in increasing employment opportunities for vulnerable groups. These policies have long-term effects on employees, employers, the health system, and social services.
In addition, Israel\u27s vision of the retirement age and related long-term policy is noteworthy, according to which in 2032, the gap between the retirement age of women and men will decrease, and in 2032, the retirement age of women will be set at 65 years and 67 years for men. This will help the country\u27s employment policy. In this regard, Israel has developed a transitional mechanism, which includes training and employment of older women and financial motivations (incentives) for women trained before employment.
Regarding state employment programs, Israel has different employment programs for both women and men, but the gender perspective is also integrated into this direction.
The phenomenon of the Comptroller General provided by the record of Section 304 of the General Provisions of the United States Retirement Equity Act of 1984 is significant for Georgia in the process of implementing pension reform. In order to protect the rights of the vulnerable group in old age - elderly (older) women - it is necessary to study the impact of pension plans on women.
SEC. 304. STUDY BY COMPTROLLER GENERAL OF THE UNITED STATES.
GENERAL RULE.—The Comptroller General of the United States shall conduct a detailed study (based on a reliable scientific sample of typical pension plans of various designs and sizes) of the effect on women of participation, vesting, funding, integration, survivorship features, and other relevant plan and Federal pension rules.".[18]
A life-cycle approach is a useful strategy for addressing complex discrimination based on gender and age. This is used in the Beijing Platform for Action to examine the spread and incidence of discriminatory practices that affect women at different stages of their lives and development. A life-cycle approach analyses discrimination in terms of the accumulation of forms of discrimination that may affect different stages of a person\u27s life and, at the same time, considers the positive contribution made by employees to society at different stages. The positive contribution also includes the unpaid care work of employed women. It is a fact that the life cycle approach has a \u27helping function\u27; in particular, it helps to ensure that the discrimination a woman faces at one stage of her life will not continue into later stages (ILO, Gender Promotion Programme, 2001).
The vision of the modern world’s attitude when discussing the rights of older people is well seen in the work of Julie Childs: Elder Rights Are Not Nesting Dolls: An Argument for an International Elder Rights Convention. "[19], which will be reviewed below. The world\u27s older (elder) population is growing at an unprecedented rate. About 8.5% of the world\u27s people (617 million) are over 65 years old. According to a 2015 United Nations report, this percentage is forecasted to increase to nearly 17% of the world\u27s population, or 1.6 billion, by 2050.[20] “The ageing population is growing at a rapid rate, stressing resources and spurring resentments that could lead to elder abuse. A convention on elder rights could mitigate the impact by providing a framework to manage the confluence of global modernisation, ageing, and demographic changes.”[21] It is necessary for developing countries to face the reality that 1.7 billion people over the age of 60 - almost more than 80% of the world\u27s elderly population - will live in less-developed regions in 2050.[22] The need for laws to protect the older population cannot be ignored, and it is too important to rely solely upon moral standards and cultural codes of conduct. Moreover, older persons need to have a say in these decisions.[23] An article by Julie Childs - Consultant to the United States Department of Justice Elder Justice Initiative, discusses ways to determine whether the rights of older people are human rights that international treaties should protect. The expert expands the discussion on how we can best protect the rights of the elderly (aged, senior people).
The Universal Declaration of Human Rights (UDHR) is one of the most recognised and influential agreements.[24] The UDHR was adopted by the UN General Assembly in 1948 and provides that human rights impose obligations on the state to ensure just and fair treatment of its citizens. The UDHR consists of thirty articles that affirm the rights of the individual. These rights are not legally binding per se but are described in subsequent international treaties, regional human rights instruments, national constitutions, and laws. "In addition to the UDHR, there are several other cross-cutting UN human rights treaties that generally moved human rights issues forward, but few that focus on protecting elder rights."[25] For example, the Madrid International Plan of Action on Ageing ("MIPAA") was adopted at the Second World Assembly on Ageing in April 2002.[26] MIPAA created a new stage for the protection of the rights of the elderly. According to MIPAA, the world\u27s main challenge is "building a society for all ages". "The MIPAA plan of action focused on three priority areas: "older persons and development; advancing health and well-being into old age; and ensuring enabling and supportive environments." Significantly, it was the first time governments agreed to connect ageing to human rights as a central issue at the UN conferences and summits."[27] In 2009, the Committee on Economic, Social and Cultural Rights ("CESCR") identified age as one of the prohibited grounds of discrimination.[28] CESCR is a "UN body - composed of 18 independent experts that monitor the implementation of the International Covenant on Economic, Social and Cultural Rights by its member states“.[29] CESCR has emphasised the need to prohibit age discrimination in finding work and vocational training (more focusing on people living in poverty) and to address the issue of unequal access to pensions.[30] The International Covenant on Economic, Social, and Cultural Rights stipulates that states are obliged to progressively implement the right to social security for all individuals within their territories. In 2010, the UN’s General Assembly established the Open-Ended Working Group on Ageing ("OEWG") to examine the treatment and behaviour towards the aged population. The OEWG continues to study international human rights.[31] The need to regulate the rights of the elderly at the legislative level is slowly becoming evident.
Latin America has been a constant supporter of the protection of the rights of the elderly, and on June 15, 2015, the Americas became the first region in the world to have an instrument for the promotion and protection of the rights of the elderly.[32] The Organization of American States ("OAS"), with the support of the Pan American Health Organization ("PAHO"), adopted the Inter-American Convention on Protecting the Human Rights of Older Persons.[33] The Convention on the Protection of Older Persons ("CPHROP") recognises that older people can and should freely use all human rights and fundamental freedoms.[34] The Convention, which was signed by the governments of Argentina, Brazil, Chile, Costa Rica, and Uruguay, is an important catalyst for other countries to establish appropriate normative framework laws for the protection of old age.
“What Are Elder Rights and Why We Make Special Efforts to Protect Them?[35]
As human rights go, elder rights do not, in and of themselves, appear so extraordinary. For example:[36]
the right to work and to pursue other income-generating opportunities with no barriers based on age;
to retire and participate in determining when and at what pace withdrawal from the labour force takes place. To permit informed planning and decision-making;
to live in safe and adaptable environments to personal preferences and changing capacities. To reside at home for as long as possible;
to remain integrated and participate actively in society, including the development process and formulation and implementation of policies that directly affect their well-being;
to be valued independently of their economic contributions. To live in dignity and security and to be free of exploitation and physical or mental abuse.”[37]
Young women and men and employees of all ages need work-family balance policies. The ability of employed older women to earn a living wage for themselves and other vulnerable family members depends on work-family balance policies and the availability of jobs.[38]
There are several factors that have a more negative impact on older working women. In particular:
age discrimination at work, which means: the imposition of age restrictions for employment or training;
indirect discrimination through measures that force older workers to retire early, such as compulsory retirement savings schemes.[39]
Although, according to actuarial calculations, women live longer than men, the main obstacle to receiving an equivalent pension is that women may not be
განსხვავება გამოძიების დაწყებაზე უარის თქმას, სისხლისსამართლებრივი დევნის დაწყებაზე უარის თქმას, სისხლისსამართლებრივი დევნის შეწყვეტასა და სახელმწიფო ბრალდებაზე უარის თქმას შორის
No full textThe article discusses, in accordance with the Criminal Procedure Law of Georgia, the institutions of refusing to initiate an investigation, refusing to initiate a criminal prosecution, terminating a criminal prosecution and refusing to file a state accusation, the similarities and differences between them. The author presents the problems of initiation and implementation of the aforementioned procedural institutions in practice and ways of solving them. The author is working on a doctoral dissertation, the title of which is "The Refusal of the State Accusation by the Prosecutor and Its Legal Consequences." Although this article is not part of the thesis, it is closely related to the scientific characterization of the institution of waiver of charges. In addition, the topics discussed in it will help the reader to have a clear idea about the legal regulation of the institution of refusal to charge, its role and its importance in procedural legislation. The study of the mentioned issue will help us to compare the issue under consideration with the procedural institutions that are close to it, which will allow us to clearly present the legal analysis of the specific discretionary powers of the prosecutor.The article will give the reader a clear idea about the powers of the prosecutor, which at first glance does not represent a characteristic right of the prosecutor\u27s office, but has a special place in the extensive arsenal of the prosecutor\u27s powers and perform certain functions of protecting rights.
Keywords: prosecutor, accusation (charge), accuser, termination of prosecution, waiver of accusation
Introduction
At present, Georgian scientific works do not pay attention to the issue of waiving state charges and their legal consequences. We believe that the scientific study of this component, the identification of existing problems and the search for ways to solve them will contribute to the perfect implementation of the principles of the criminal justice process in the sense that everyone who has committed a crime will be held criminally liable, and at the same time, the conviction of an innocent person should be excluded.
We believe that related instruments for waiving charges in procedural legislation are presented in the form of a refusal to initiate an investigation, a refusal to initiate criminal prosecution and a termination of criminal prosecution. The mentioned procedural decisions are fully harmonized with the recommendation of the Council of Europe Committee of Ministers, according to which state accusers should not initiate or continue criminal prosecution, if, as a result of an objective investigation, the groundlessness of the accusation is established.[1]
Studying the research topic from a scientific point of view will allow us to fill the void that is accompanied by the rejection of the state accusation in the Georgian reality, and this void will be filled by answering such questions, which are problematic and interesting for both scientists and practising lawyers. A scientific study of the institution of waiver of state charges, a detailed analysis of its essence and results, in the light of current legislation of Georgia, will allow us to identify the problems that accompany the aforementioned procedural action, as well as create a clear idea and formulate recommendations that will ensure, on the one hand, in finding ways to solve the problems surrounding the procedural institution and on the other hand for the perfection of the procedural legislation. A scientific study of the issue will help the prosecutor to more actively and smoothly use his discretionary authority and to minimize subjective and criminal approaches by the state prosecutor when refusing the state charges.
In this regard, a discussion on the problems of the prosecutor\u27s refusal to file state charges should be published in the Georgian legal literature. For comparison, this issue is actively raised and discussed in the legal circles of foreign states.
The conviction of an innocent person has been considered a serious crime since ancient times. Therefore, the ancient world severely punished those who illegally accused a righteous person. For example, the laws of Hammurabi punished with death the accuser who failed to prove the person\u27s guilt. Ancient Greece and ancient Rome also shared this approach and believed that it was better for the guilty to go unpunished than to punish the innocent. According to the Roman Constitution of 212, the burden of the accusation rested on the accuser, and according to the Magna Carta (Great Charter of Freedoms), the authority to judge a person could not be given to the king but only to a fair trial.[2]
Justice in Georgia is carried out on the basis of equality and competitiveness of the parties, which ensures the democratization and perfection of the justice process.[3]
In this process, a decisive role is assigned to the process of exercising the discretionary powers of the prosecutor, who at the decisive stage of the legal proceedings, in particular during the trial of the case, acts as the state prosecutor, is responsible, not only for criminal prosecution but also, if there are legal grounds, for waiver of state accusation. The mentioned authority gives the prosecutor, as a state accuser, the rights and duties of a human rights defender since, if there are sufficient grounds, the rejection of state charges are directly related to the realization of a person\u27s legal rights. During the use of the authority to refuse to execute state charges, the prosecutor protects the rights of the accused and the use of this right is assigned by the law to the state prosecutor with the same success as the implementation of criminal prosecution, which excludes the implementation of criminal prosecution procedures against an innocent person before the final decision of the court and will promote fair and lawful administration of justice.
Difference between Refusal to Initiate an Investigation, Refusal to Initiate Criminal Prosecution and Waiver of State Accusation
If a crime is reported, the law obliges the investigator and the prosecutor to initiate an investigation[4]. In practice, is an investigation initiated on the basis of any report of a crime? As mentioned above, the positive obligation to start an investigation upon receipt of information about the commission of a crime is assigned to the investigator and the prosecutor by procedural law and in this case, it does not represent such discretionary powers as, for example, initiating a criminal prosecution, as well as its termination and refusal to present accusations.
It should be noted here about a formal but important circumstance. In particular, procedural legislation does not recognize either the procedural institution of refusal to initiate an investigation or the system of pre-investigative actions. In some cases, scientists positively evaluate this legislative trend and believe that such an approach will prevent the establishment of the "syndrome of impunity" in the country[5].
The refusal to initiate investigation and/or criminal prosecution at the early stage of criminal proceedings is in accordance with the principles of the criminal proceedings[6], as it speeds up the process of resolving the conflict between the participants in the process, it saves material and human resources, which in turn directs these assets to the investigation of serious and especially serious crimes.
In what cases the investigator and the prosecutor cannot start the investigation? To answer this question, we should again be guided by the text of Article 100 of the Civil Code, which deals with information about crimes. It should be noted that the investigator and the prosecutor must, first of all, establish the presence of signs of crime in written, oral or otherwise recorded reports[7], Which is an extremely important issue also for the initiation of the investigation in order to determine the qualification of the crime. Currently, there are seven independent investigative structures in Georgia, namely: the Prosecutor\u27s Office of Georgia, the Ministry of Internal Affairs, the State Security Service, the Ministry of Defense, the Ministry of Justice, the Ministry of Finance and the Special Investigation Service. Of course, the aforementioned bodies will not have the same approaches to recording information about crimes, but what unites them all is the electronic program for the investigation of criminal cases, which has been adapted to all investigative bodies of Georgia since 2010 and which is used by all investigators and prosecutors of Georgia in their daily activities. Registration of the report in the mentioned program assigns it a unique registration number, after which, if the investigator and the prosecutor come to the conclusion that there are obvious signs of a crime, the electronic program allows the investigator to start an investigation on an action-by-action basis, after which the program automatically creates a so-called Form #1, in which the number of the criminal case, the plot of the crime, the criminal qualification of the crime and the electronic signature of the authorized person are indicated.[8]
If the investigator and the prosecutor fail to establish the signs of a crime in the report and, moreover, the report unambiguously indicates the absence of signs of a crime based on its content, in such a case, the investigator and the prosecutor will not have an obligation to initiate an investigation, and they must make an objective decision to refuse to initiate an investigation.
It should be noted here that a report on a crime, if we do not consider the case revealed during criminal proceedings, always has a specific initiator, which in some cases is subjective and acts based on personal interests. Accordingly, the investigator and the prosecutor, before starting the investigation, should study and analyze the facts and circumstances mentioned in the information in detail, at which time, based on their professionalism, they should, first of all, determine the presence of signs of crime in the report, and then give legal qualifications to the illegal activity.
What legal mechanism exists in the case when the report does not allow for categorical analysis? In particular, there are no signs of crime, but the fact requires further study. The following question logically arises, in the conditions when the current procedural legislation of Georgia does not recognize pre-investigation proceedings, how should the investigator and prosecutor check the facts indicated in the report, which do not contain obvious signs of crime? This issue is regulated by various laws and subordinate normative acts, which generally regulate the activities of law enforcement agencies. As an example, we can cite the laws of Georgia "On operative-search activity" and "On counter-intelligence activity". In addition to the above, before the investigation, the police officers, including the investigator of the Ministry of Internal Affairs, have the right to interrogate a person, identify him, call him, examine him and perform a superficial inspection[9]. Employees of the State Security Service, which also includes the service investigators, have the right to conduct these procedures[10] before the start of the investigation. Employees of the General Inspection of the Ministry of Defense, including investigators, have the right to request information, consider complaints, demand explanations from employees regarding their official activities, etc., before the investigation begins[11]. After the completion of the relevant legal procedures, if there are no grounds for the initiation of the investigation, the investigator and the prosecutor refuse to initiate the investigation. The specified decision does not have the form of a procedural document since, as mentioned above, the Code of Procedure does not recognize such a situation, and therefore it cannot have the form of a procedural document such as a resolution. In such a case, the investigators draw up a written document, which can be in the form of a notice or protocol, which indicates the receipt of the report, its content, the verification of the factual circumstances indicated in the report, the measures taken and the conclusion obtained as a result of their analysis that it does not contain signs of crime[12]. The mentioned document should be reflected in the electronic investigation program, and the status of the registered report should be changed from "active" to "completed".
When starting an investigation, it is important to take into account the issue of its expediency. Since it is possible to start an investigation on a specific action, it may be more difficult and painful, even for public and private interests, as well as senseless and unfair, than to refuse to start it.
We should also touch on such a matter when we have formal signs of crime, but due to private, public and social interests, it may not be appropriate to start an investigation. In general, the investigation process is related to the time factor and human and material resources, which should be consistent with its legal outcome. For example, the sanction of a specific criminal act includes a minimum fine and/or community service.
We believe that the investigation should not be started on the facts of a crime with such a formal composition, which is a less serious crime, and when the time and resources required for conducting the investigation will be incompatible with its results. For example, when an investigation is to be conducted on the fact of a less serious crime, which is punishable by a minimum fine when the person does not pose a public danger, the damage has been compensated, the situation has changed, the victim does not demand offender\u27s punishment, or when, based on public, private or social interests, it is inappropriate to open an investigation.
In case of refusal to initiate an investigation, it is necessary to analyze the set of factual circumstances based on which the prosecutor and/or investigator can use this authority. In particular, the issue of compensation for material and moral damage should be considered; it can be expressed both in kind and in monetary form, as well as by an apology, payment of treatment costs, assistance in the restoration of other violated rights, which corresponds to personal and public interests.
It should also be noted here that in a number of cases, by starting an investigation, it is possible to achieve such legitimate goals as the reconciliation of the participants in the process, awareness and repentance of the perpetrator of his illegal actions, compensation for damages, prevention of similar or other crimes in the future, and others.
Accordingly, it can be concluded that the absence of signs of a crime in the notification may be considered the basis of the classic form of refusal to initiate an investigation.
According to Georgian legislation, the prosecutor leads the litigation process up to the stage of judicial review, which also includes the pre-investigation stage. Despite the foregoing, the investigator has the right to refuse to start the investigation, which on the one hand, speeds up the litigation process and, on the other hand, strengthens the institution of the investigator, which is a positive issue since the levelling of the investigator\u27s rights under the current regulations may be considered the Achilles heel of the current procedural code.
Some scientists consider the moment of registration[13] of the crime as the stage of the beginning of the investigation, which we cannot agree with because we believe that the pre-investigative activities, as its name clearly shows, are the previous stage of the investigation, in addition, the electronic criminal investigation program considers the moment when on an action-by-action principle, the investigator receives an investigation initiation card in the program, which provides a unique identifier of the criminal case - the case number. Here we must also take into account the formal conditions established by the current legislation. In particular, the application of the norms of the Criminal Procedure Code in practice, implementation is possible only after the beginning of the investigation, and the pre-investigation procedures are not regulated in it. Simply put, there cannot be an investigation process without the implementation of procedural legislation, and its implementation is directly related to the issue of initiating an investigation, and if we use the old terminology, "Criminal proceedings are the first step in the initiation of an investigation into a criminal case, it is the beginning of a criminal case that provides a basis for conducting all kinds of procedural investigative actions".[14]
With regard to the similarity between the initiation of the investigation and the refusal to bring charges, it should be noted that in both cases, the prosecutor has the authority to make a decision (when refusing to initiate an investigation jointly with the investigator or independently) and in both cases (the case of complete waiver of charge) a specific stage of the proceedings is completed. And as for the difference between them, in the first case, we have the stage and procedures before the start of the investigation, which is not regulated by the procedural legislation, and the refusal of the accusation is possible, according to the procedural legislation, only after the investigation has begun, it is conducted in its full scope, and the case is sent to the court for consideration.
Regarding the issue of termination of the investigation of the criminal law case, it should, first of all, be noted that the investigation belongs to the special administration of the highest state bodies of Georgia[15], despite the indicated constitutional reservation, the basic principle of the current procedural legislation is competition[16], which implies the equality of the parties in terms of gathering evidence as well. Such procedural regulation of the issue, on the other hand, as a democratic starting point, limits the monopoly of the state on criminal proceedings and, accordingly, strengthens the authority of the defense side in terms of independent collection of evidence[17]. The process of obtaining evidence independently by the parties, in turn, accelerates the criminal proceedings and makes it possible to make a timely summary decision on the case, even as the termination of the investigation in the case.
The legal grounds for termination of investigation and/or refusal to initiate criminal prosecution, as well as its termination, are regulated by Article 105 of the Code of Criminal Procedure. Termination of the investigation is the authority of the prosecutor[18]. We agree to divide the grounds for termination of the investigation into two main groups: substantive and procedural. The first group includes all the grounds that categorically exclude the existence of corpus delicti (a crime) in the act, which in turn excludes the issue of criminal prosecution and conviction against a person. Procedural grounds for termination of the investigation and refusal to start the investigation exist in such circumstances, the presence of which indicates the committed crime and the possibility of applying the punishment, but the legal regulations do not provide proper conditions for starting and/or continuing the proceedings[19].
The prosecutor issues a decision to terminate the investigation, which is reflected in the electronic program of the investigation of the criminal case. After the decision is made, in the electronic program, the status of the case, "active", is changed to "terminated", and the program no longer provides technical means for performing any investigative action. The current procedural legislation, for its part, does not recognize the possibility of conducting any investigative or procedural action after the termination of the investigation. If we do not include the protocols and/or notices showing the disposal of the material evidence[20] attached to the case, the investigator and/or the prosecutor draw up these procedural documents in accordance with the resolution part of the decision to terminate the case[21], by which the fate of the material evidence was decided. Such procedural documents can be, for example, a protocol on unsealing, viewing and returning material evidence to the owner, a protocol on the destruction of material evidence, and others.
Professor Apollon Paliashvili divided the grounds for terminating the investigation into three groups:
Grounds that exclude the investigation of a criminal case;
Grounds that give the producer of the process the right to terminate the investigation;
Grounds for terminating the investigation due to non-confirmation of the accused\u27s involvement in the crime.
There is the following similarity between the termination of the investigation and the refusal of the accusation, in both cases, the investigation has been started, and only the prosecutor has the right to terminate the investigation, as well as to refuse the accusation, and in both cases, formal grounds are required to make a procedural decision, which is presented in Article 105 of the Civil Code of Georgia. As for the difference between them, the prosecutor can terminate the investigation only before sending the case to the court for consideration, while the charge is dropped only at the trial stage, the investigation can be terminated even when the case has not been prosecuted, while the charge is withdrawn only after such, if any. In the first case, it is possible that we do not have a victim the case, but if there is
პირის გამოკითხვის პრობლემატიკა – მოქმედ სისხლის სამართლის საპროცესო კანონმდებლობაში
No full textThe article deals with the regulations related to the questioning of a person, its similarities, and differences with the interrogation of a witness in court in accordance with the Criminal Procedure Code of Georgia. The author presents the problems that arise in the practical application of legal norms related to the questioning of a person. This often becomes the basis for delaying the investigation and, in general, harms the justice process. The paper discusses ways to solve the problems presented. To better present the problems discussed in the article, hypothetical examples are offered that will help the reader get a clear idea of the existence of possible negative factors during the application of the norms under discussion in practice. It will assist us in studying the mentioned issue by comparing the issue under consideration with the procedural rules of interrogating the witness standing close to it. Also, an analysis of the legal framework of foreign countries regarding witness interrogation procedures is presented, which will help us identify the problem and find solutions.Keywords: investigator, prosecutor, witness, interrogation, magistrate judge
Introduction
The current Criminal Procedure Code of Georgia, since its adoption, has undergone a number of changes, the purpose of which is to simplify the investigation, ensure competition between the parties and bring procedural rules in line with international standards.
The process of making changes and additions to the procedural legislation is natural and acceptable for the above purposes, moreover, the Council of Europe ministerial has developed a recommendation, according to which the member states were instructed to implement legislative changes to speed up and simplify the process of criminal proceedings, since the procedural legislation of the continental legal system was stretched over time.[1] In addition, with the additional recommendation of the Committee of Ministers of the Council of Europe, the member states were recommended to introduce simplified forms of proceedings in the national legislation.[2]
Contrary to this, the practice has revealed that over the years, some changes made to the current Criminal Procedure Law not only did not accelerate and simplify the litigation process but directly harmed the legitimate interests of conducting a complete, timely and objective investigation of the case.
The investigative process is unthinkable without investigative and procedural actions. Each investigative action serves as the process of gathering evidence by the parties in the case. In the article, we will touch upon the most common investigative action of questioning a person in practice. There are practically no criminal cases where witnesses were not interviewed. The proportion of evidence obtained as a result of this investigative action is impressive.[3]
In this scientific work, we will touch upon the legislative changes made to the Criminal Procedure Code of Georgia on December 18, 2015, in particular, the new procedure for questioning a person within the framework of the investigation, its negative aspects, which are clearly visible in practice. We will analyze the problems associated with conducting a specific investigative action, its goals and significance in the criminal case. The paper identifies the problems that cause irreparable damage to the investigative process and directly contribute to the unreasonable delay in the investigation, making it impossible to obtain evidence in the case on time.
The article presents the author’s vision of solving the identified problems related to the procedural norms of questioning a person. In particular, legislative changes and the rationale for their implementation are proposed.
Problems in the Current Way of Questioning a Person
In this article, we will deal with, in our opinion, the problematic issues of the rules of procedure related to the questioning and interrogation of a person. In fact, a detailed study and analysis of the questioning and interrogation of a witness during the investigation is not the goal of scientific work, and not one article will consider all aspects related to the procedural institution in question.
According to the procedure for interrogating a witness during an investigation established by the Criminal Procedure Code of 1998, a witness could be summoned to testify before the investigating authority, in which case he was obliged to appear and give evidence, otherwise he would be held criminally liable.[4]
Questioning a person was regulated in the Criminal Procedure Code of Georgia for the first time. This institution can be freely called one of the main innovations of the current Code of Criminal Procedure, according to which the witness is granted the right to have a voluntary relationship with the investigation authorities and he will have the right to freely choose whether to give information to the investigator or the representative of the defense, i.e., to act on his will. This standard was considered by the legislator as the basic standard for all legal states and an appeal was made to the precedent decision of the European Court (John Murray v. the United Kingdom, § 45).[5] Along with the introduction of novation in the procedural legislation, the lawmaker also spoke about the negative consequences that would result from such a legislative innovation in the event of an unfair refusal of a witness to cooperate with the investigation.[6] Unfortunately, these negative results really manifested themselves in practice, and in today’s situation, the issue of the witness’s cooperation with the investigation for unsubstantiated motives has become problematic in practice, which, in turn, is directly related to the procedural requirements for the timeliness and objectivity of the investigation. Because it contradicts the fundamental and guiding principle that everyone is guaranteed the right to a trial within a reasonable time.[7] We will talk about this issue in more detail in the next part of the study, before that, in the interest of fairness, it should be noted that the legislator’s appeal to the aforementioned precedent decision of the European Court, with the motive of justifying the legislative changes, was, to put it mildly, unconvincing. In this case, the European Court discussed mainly the right of the accused to remain silent and the right not to testify against himself.[8] This fundamental situation, which is typical for the criminal procedural legislation of democratic countries, is provided for both in the old and in the current procedural legislation of Georgia.[9]
At the stage of investigation of a criminal case, questioning a person helps to obtain important evidence; the issue of solving a crime often depends on the said investigative action.[10] The mentioned investigative action is the legal procedure during which, along with the phased overcoming of the tasks presented, the main goal of the investigative action is achieved – obtaining evidence in a case.[11] It is this circumstance that attaches particular importance to the questioning of a person during the investigation. Besides, the establishment of such bureaucratic clauses for investigative action, which in many cases delays its implementation and thereby damages the investigative process, in our opinion, will hinder the timely administration of justice.
We cannot agree with the opinion of a number of authors that the Georgian model of the institution of questioning a person is close to the status of “assisted witness” provided by the French Procedural Code and that a person can be questioned without an oath.[12] Therewith, the Georgian legislation also recognizes the questioning of a person without an oath as a type of operational-investigative measure.[13] As for the procedural rules of questioning a person, in the case of the person\u27s statement of consent to the questioning, the party warns him in writing about the expected criminal liability for false snitching (crime under Article 373 of the Criminal Code of Georgia) and providing false information (crime under Article 370 of the Criminal Code of Georgia).[14]
The current procedural rule for questioning a person has been repeatedly postponed after the entry into force of the new procedural code, the last time it came into force on February 20, 2016, [15] and during the investigation of a number of crimes, this rule came into effect on January 1, 2017[16] and June 30, 2019.[17] Along with the new procedure for questioning a person, the procedure for interrogating a person as a witness during the investigation has also undergone a significant change[18], which has made the institution of interrogation of a witness in the investigation more problematic. We will discuss this matter in detail in the next chapter of the paper.
Problems in the Procedure of Interrogating a Person as a Witness
As we have already mentioned, the current procedural law provides for the procedure of interrogating a person as a witness during the investigation. The law provides for the factual circumstances under which a person may be interrogated as a witness by a magistrate judge during an investigation.[19] The mentioned standard cases are not the subject of discussion in this article, so we will not dwell on them, as the given rules do not have a problematic nature, but on the contrary, they are integrated into conducting the investigation comprehensively, timely and objectively. We consider the specific amendment introduced on December 18, 2015, problematic, according to which, at the stage of investigation, a person can be interrogated before a magistrate judge for refusing to be questioned.[20] In what cases can a person refuse to be questioned by an investigator? Reasons for a person’s refusal to be interviewed may be: 1. distrust of the investigation; 2. not having information on the case; 3. using the voluntary right of questioning granted by law, and although he trusts the investigation for any positive or negative reasons, does not consider it necessary to cooperate with it.[21] The mentioned condition of the current law,[22] to put it mildly, harms the investigation process and imposes unjustified and lengthy bureaucratic barriers on the parties. Let\u27s consider in detail in which case the person questioned may distrust the investigation. When a person considers the investigation is biased, he uses illegal methods to obtain testimony against it. Furthermore, the person to be questioned may express distrust for other subjective reasons (for example, political, social, and other unsubstantiated reasons). The process of questioning is similar to the process of exchange of opinions in human relations, the conversation is more sincere and desirable between people who have respect for each other, if there is trust for the investigative bodies the interview becomes an effective tool in terms of gathering evidence.[23] The current legislation does not require justification of the reasons, and it is enough for a person to express distrust, his testimony according to the law is a voluntary process. This circumstance can be used maliciously and subjectively by the person to be questioned, which can be directed against the legal interests of the investigation. Therewith, in the event of misconduct by an investigator or an investigating authority, the law also establishes various protection mechanisms. For example, such as the removal of the investigator in case of bias,[24] any threat and violence committed by the investigator against a participant of the process, committed in connection with the investigation of the case, constitute a criminal act,[25] and in order to investigate these criminal acts, in addition to the mechanisms of internal control, an independent investigative body, Special Investigation Department, has been established.[26] In addition to the mentioned, it is directly the responsibility of the prosecutor’s office to respond to any illegal actions of the parties. In view of the above, the presence of unsubstantiated and groundless mistrust for investigation, which is not rare in practice, in our opinion, should not be a reason for a person to refuse to be questioned. Particular attention is paid to the case of a person not possessing information as a basis for refusing to be questioned. As a rule, the party summons for questioning such persons who, according to the evidence available to the parties, have information on a specific case. However, it should not be excluded the mistake of the party and the summoning of a person who objectively does not have any information on the case. In such a case, the time-consuming procedures are detrimental to the investigation, and a person can easily claim during the investigation that he does not have any information. The third ground for refusal to be questioned, namely, when a person possesses the necessary information about the case, which is vital for establishing the objective truth in the case, but he does not consider it necessary, even for any reason, to cooperate with the investigation and for this uses the right of voluntary questioning provided by law, in our opinion, goes beyond the reasonableness. This provision of the law causes irreversible and irreparable damage to the process of justice and contradicts the constitutional provision, which obliges everyone to provide information in their possession to the investigative commission.[27] Against the background of the foregoing, we believe that granting a person the right to refuse to be questioned on unsubstantiated grounds, within the framework of the investigation, will add an unconstitutional tone to said law entry.
In addition to the above-mentioned fact, during the investigation, the interrogation of a person in the presence of a magistrate creates problems in other areas as well, namely, the witness\u27s deposition testimony is used by the court during sentencing. In addition to the above, the court considers only the testimony of the witness, interrogated during the trial with the participation of the parties, during which the right to face-to-face confrontation with a witness (The Confrontation Clause), guaranteed by the European Convention, was ensured. And such cases, when a witness is interrogated before a magistrate judge only by the prosecution, can be perceived as posing a threat to a fair trial.[28] And the current legislation allows the possibility of interrogation of a person in the presence of a magistrate only by the prosecution.[29]
In the next chapter of the work, we will try to study in detail the problems related to questioning a person, present practical barriers against the background of hypothetical examples, present statistics relating to the issue and determine the inconsistency of the norms in force with forensic approaches.
Problems in Practice
It is in the interests of the parties to conduct proceedings in an accelerated timeframe, this issue becomes especially relevant when investigating less serious and serious crimes, since timely investigation involves avoiding unjustified costs, both human and material.[30] Such is the mandate of the state and society and the obligations of the country in relation to international democratic principles. Unfortunately, controversial and problematic issues of the current legislation provide the opposite situation and create obstacles, even delaying the investigation. To clarify our idea, let\u27s use the following hypothetical example: A and B are eyewitnesses to the premeditated murder of C, they can give the investigation accurate information and help identify the killer X. The presence of eyewitnesses became known to the investigator in the case, who summoned them to the investigative agency for questioning.[31] A and B refused to testify for the voluntary investigation.[32] In such a situation, the investigator is obliged to notify the prosecutor, who will consider the advisability of filing a petition to interrogate a person as a witness before a magistrate judge, and in case the prosecutor decides positively on the issue of conducting an investigation, [33]he has the right to personally file a petition with the court or instruct the investigator to draw up the specified petition and allow the investigator to apply to the court himself.[34] After the petition is submitted to the court,[35] the court is obliged to consider it and proceed to the interrogation of the witness within 24 hours.[36] In addition, interrogation of a witness at night is not allowed, and an interrogation that has begun must be terminated at nightfall[37] and continued the next day. In addition to the above, the law also provides for the non-appearance[38] of a witness for an honorable reason,[39] which, in turn, delays the investigation. On the other hand, a judge may refuse a petition to question a person as a witness before a magistrate judge, on which he issues a reasoned ruling and sends it to the party initiating the petition.[40] A party can appeal this petition to the investigative board of the Court of Appeal within 24 hours of its submission.[41] In case of an appeal, the judge of the investigative panel considers the petition no later than 24 hours after its filing.[42] The judge of the appellate court makes the final decision on the appeal, he either approves it or refuses to approve it. For the hypothetical example we have given, in the best scenario, namely, if the appeal is upheld, the ruling is immediately sent to the author of the appeal and to the magistrate who issued the ruling under appeal.[43] In this context, the interrogation of the witness must begin within a reasonable time but no later than 24 hours after the delivery of the ruling of the judge of the investigative panel of the Court of Appeal to the magistrate judge. In addition, in this case, the absence of a witness for an honorable reason should also be considered.[44] However, after all, that has been mentioned, the appearance of the witness in court is still voluntary, and in case of non-appearance at the appointed time, it is possible to use coercive measures against him,[45] which, in turn, means additional time resources. After the interrogating of A and B before the magistrate judge, the magistrate ensures that the testimony given by the witnesses in court is transmitted to the party initiating the interrogation, both in written and electronic form.[46] In practice, this procedure often takes several days, for the following reasons: 1. The testimony of a witness in court is recorded electronically, in particular, an audio recording of the process is made. After that, the secretary of the court session, based on the audio recording, provides a printed version of the interrogation protocol. If the testimony of a witness is extensive or several witnesses are interrogated, then this process accordingly requires more time resources; 2. After the interrogation protocol is drawn up by the court, the witness(es) is given the opportunity to familiarize themselves with the testimony given by them, which implies their additional attendance at the court (it should be borne in mind that even in this case the deadlines can be extended and there is no lever of coercion), by personally reviewing protocol and making comments and statements on it, if any; 3. After the witness has familiarized himself with the protocol, the court sends the printed and electronic versions of the said protocol to the investigative body, which in turn provides for a 5-day procedural period.[47] As we can see, in such hypothetical cases, which happens quite often in practice, the time for obtaining the information necessary by the investigation may take several days or even weeks. At such a time, irreparable damage is possible not only to the investigation but also to the legitimate interests of the state and society, since after the identification of the person X, who committed the crime, it is possible to find out that he managed to escape and/or leave the country. As a result, the process of justice will be damaged, and it will be difficult to restore justice in the case, and to use coercive measures against the person who committed the crime and to enforce the punishment.
In addition to the above, the problematic nature of the current law discussed by us is incompatible with the criminalistic approaches established for questioning a person. Forensic tactics is based on the achievements of such sciences as logic, psychology and others, and assists the investigation process to effectively conduct various investigative activities, including interrogation, which involves the timely acquisition of correct and objective evidence in the case.[48] The investigator, from a criminalistic point of view, is obliged to use during the investigation such a tactic, that will contribute to obtaining objective and complete information about the case and the process of establishing the objective truth about the case in a timely manner.[49] One of the general tactical methods of interrogation in criminalistics is the creation of normal conditions for the questioning, which means conducting the questioning in isolation, without the presence of strangers, etc.[50] Despite the fact that the law does not necessarily determine the place of questioning, depending on the situation and interests of the investigation, as well as the person to be questioned, the said investigative action can be performed at any place (investigative body, place of residence, office, etc.) where it is technically possible to draw up a written questioning protocol.[51] Particular attention is paid to the choice of the place of interrogation, since external conditions play a special role in determining
სმარტ-კონტრაქტში გამოყენებული ბლოქჩეინ ტექნოლოგიის არსი და სამართლებრივი პრობლემები
Get PDFBlockchain and its practical realization as cryptocurrency in particular, is the subject of serious discussions both in the world of computer technology and in the financial industry. People who have been able to access the basic aspects of blockchain networking principles are quite quick to conclude that the origin and subsequent development of this technology could significantly change the picture of the modern world. A document created by Satoshi Nakamoto in 2008 whats more, the Bitcoin project was the first practical implementation, based on blockchain technology, which turned out to be unnoticed by the world at that time. However, during this period, there were still people who paid their attention to it, it was also because they had a professional interest. However after some time when the society noticed how fast the price of one Bitcoin was rising and reached thousands of dollars they realized that it was not funny and on the contrary had a great future. The real representation of interest in blockchain projects started in the first half of 20162 From this period Georgia joins this project and the Public Registry is one of the first to start the land registration through blockchain