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სამხედრო ნადავლი, როგორც საკუთრების უფლების შეძენის წყარო, ძველ ქართულ სამართალში
Get PDF Institute of Feudal Property Rights’ fundamental research is important for studying the Georgian law institutions of this period. The original means of obtaining property rights, including military trophy, have not yet been well explored. Due to peculiarities of feudal relations, the only thing that always connected the royal government with the fiefs during the period of Georgia’s unification or fragmentation into kingdoms was the obligation to military campaigns. Commitments were imposed not only to the secular but also to the ecclesiastical feudal lords. At the same time, depending on the form of military organization, permanent, mercenary or regular troops had different rules for capturing spoils of war and distributing them. The paper presents the main features of military booty as one of the important sources of acquisition of ownership in the old Georgian law. The paper examines rules for obtaining ownership of enemy property in feudal Georgia, the order of division of seized property between warriors of crusades and other authorized persons, and also examines the factors on which the legality of spoils of war was depended. The paper discusses issues such as: descriptive terms of spoils of war; property obtained by the sword as a indisputable property; Tradition of taking Panjiak – King Panjiak; The amount of the officers’ share in the booty, which was allocated either from Panjiaki or from the rest of the property. ფეოდალური საკუთრების უფლების ინსტიტუტის ფუნდამენტური კვლევა მნიშვნელოვანია ამ პერიოდის ქართული სამართლის ინსტიტუტების შესასწავლად. საკუთრების უფლების შეძენის თავდაპირველი საშუალებები, მათ შორის, სამხედრო ნადავლი, ჯერ კიდევ სათანადოდ არაა გამოკვლეული. ფეოდალური ურთიერთობების თავისებურებიდან გამომდინარე, ერთადერთი, რაც სამეფო ხელისუფლებას ყოველთვის აკავშირებდა საფეოდალოებთან, საქართველოს ერთიანობისა თუ სამეფო-სამთავროებად დაქუცმაცებულობის პერიოდში, იყო სალაშქრო ვალდებულება. ეს ვალდებულება ეკისრებოდათ არა მარტო საერო, არამედ საეკლესიო ფეოდალებსაც. ამავე დროს, სამხედრო ორგანიზაცის ფორმებიდან გამომდინარე, მუდმივ, დაქირავებულ თუ რეგულარულ ჯარებს, ომის ნადავლის აღებისა და მისი განაწილების განსხვავებული წესები ჰქონდათ. სტატიაში გადმოცემულია სამხედრო ნადავლის, როგორც საკუთრების უფლების შეძენის ერთი-ერთი მნიშვნელოვანი წყაროს ძირითადი თავისებურებები ძველ ქართულ სამართალში. ნაშრომი შეისწავლის ფეოდალურ საქართველოში მტრის კუთვნილ ქონებაზე საკუთრების უფლების მოპოვების წესებს, მოლაშქრეებსა და სხვა უფლებამოსილ პირებს შორის ნაშოვარი ქონების გაყოფის რიგს და, ასევე, იკვლევს რა ფაქტორებზე იყო დამოკიდებული ნადავლის კანონიერება. ნაშრომში განხილულია ისეთი საკითხები, როგორიცაა: სამხედრო ნადავლის აღმნიშვნელი ტერმინები; ხმლით ნაშოები როგორც მოუდევარი საკუთრება; ფანჯიაქის აღების ტრადიცია − მეფის ფანჯიაქი; ნადავლში მოხელეთა წილის ოდენობა, რომელიც ან ფანჯიაქიდან, ან დარჩენილი ქონებიდან გამოიყოფოდა
Comparative legal analysis of the European and American standard of freedom of expression – which is more effective and result-oriented?
Get PDF Freedom of expression is critical for a state with democratic principles. A democratic society cannot exist in the absence of freedom of expression. A high quality of freedom of speech, sanctioned by statute and executed, is required for a person to voice his critical view about current events in the country without interference from the authorities. The purpose of this study is to focus on freedom of expression as one of the most important democratic values in the world. The paper discusses and analyzes the European Court of Human Rights practice in relation to freedom of expression. It is well known that the European Court of Human Rights grants signatory nations broad discretion in determining the level of interference with freedom of speech. The paper critically assessing the component of broad discretion that it grants to the Conventions signatory states. Parallel to the analysis, precedent law from the United States of America and the American model of freedom of expression are explored, which are also critically evaluated. Parallel to the consideration of the two most essential standards, emphasis is placed on the Georgian model of free expression, which indicates the works worth. Following the adoption of the American model of free speech at the legislative level in Georgia, the evaluation, analysis, and dissemination of full information to the public will be of the highest relevance and value. Finally, after the debate and analysis generated throughout the work, the essential discoveries are stated, and the authors viewpoint is stated.
Keywords: Freedom of expression, American standard, European Court of Human Rights standard, Georgian standard.
Introduction
Freedom of expression is a critical component that contributes to the evolution of society, the limiting of government arbitrariness, and the personal development of individuals.[1] The most essential point to be discussed in the article is Article 10 of the Convention. The research will concentrate on the meaning and significance of freedom of expression, as well as European and American standards. The most important judgements of the European Court of Human Rights and the Supreme Court of the United States will be examined. Following a study of European and American standards, emphasis will be placed on the Georgian standard of freedom of speech, which is equivalent to and consistent with American approaches.
According to the analysis offered in the publication it might be argued, based on the developed reasoning, that the Convention has not been a progressive mechanism for decreasing human rights violations, specifically infringements of freedom of expression.
The European Court of Human Rights\u27 standard and legal practices
Freedom of expression has long been seen as a necessary and essential component of a democratic society.[2] In some circumstances, the state has the ability and responsibility to interfere in and restrict freedom of expression to preserve society\u27s and individuals\u27 interests.[3] Even in the most open and free societies, not all types of self-expressions are permitted.[4] However, All cases related to the restriction of freedom of expression in court are aggravated from the very beginning by the presumption of unconstitutionality…The government has a heavy burden to justify the need for appropriate restrictions.[5]
Article 10 of the Convention excludes from the field of protection an insulting expression, "if it equates to malicious humiliation, when the sole purpose of an insulting statement is to insult”.[6],[7],[8] It should be noted that Article 10 of the Convention protects: printed documents,[9] radio broadcasts,[10] pictures,[11] films,[12] and electronic information systems. Article 10 (2) of the Convention contains a thorough list of interests. There are no other reasonable justifications for curtailing freedom of expression.[13]
Without a doubt, when the standard for protecting freedom of expression is high, the individual\u27s ethical independence is given a lot of weight. In this regard, the European and American conceptions of freedom of expression differ. Unlike the European standard, which examines the substance of the case and considers moral protection as one of the grounds for restricting freedom of expression, the American standard imposes a neutral restriction.
The European Court of Human Rights in the case of Handyside v. The United Kingdom"[14] set the standard for freedom of expression. The Court stated in that case that "information" or "ideas" that are insulting, distressing, or disturbing to any State or people are also protected under Article 10 (2) of the Convention.[15] The standard set by the European Court in the Handyside case still applies today. Interesting cases in this regard are: Lingens v. Austria;[16] Castells v. Spain;[17] Oberschlick v. Austria[18] and Gachechiladze v. Georgia.[19] Harris, Boyle, and Warbrick, well-known experts in European human rights law, argue that freedom of expression is critical to upholding the rights guaranteed in the Convention.[20] The court in the Handyside case regarded the publisher\u27s actions as a "intervention by the state with freedom of expression." However, it thought that such intervention was important in a democratic society for moral protection and teenage moral development.[21] In the case of Handyside, the Court underlines that article 10 protects offensive expressions as well. In the case of Sekmadienis Ltd. v. Lithuania, however, the Court\u27s explanation demonstrates that the Court considers the purpose of expression when assessing freedom of expression, explaining that insulting expression is protected under Article 10 (2) of the Convention if it was intended to contribute to a public debate,[22] and in the case of Murat Vural v. Turkey, The European Court of Human Rights takes into account the nature of the expression, the intention, and purpose of the author, when assessing abusive expression.[23]
Müller and others v. Switzerland concerned the punishment of an artist by a municipal government for displaying vulgar images. The Court stressed the necessity of respecting the national legislature\u27s views on the procedures that must be taken to protect morals and ethics. The court has found no evidence of a breach of Article 10.[24]
In the case of Otto Preminger Institute v. Austria,[25] the court entirely agreed with the Austrian court\u27s assessment of the need to restrict freedom of expression in the grounds of respect for religious belief. "The democracy of the society would be destroyed if offensive attacks on religious groups were allowed," [26] the justices said.
Wingrove v. the United Kingdom is a case that deals with religious morality. The screenplay was written by Nigel Wingrove, who also filmed an 18-minute video based on it. St. Teresa, who had great ecstatic visions of Jesus Christ, was the subject of the film. The film failed to get certification because it would upset parishioners. The European Court agreed with the respondent State\u27s position and found that the restriction on freedom of expression was justifiable.[27]
The case of M. Rommelfanger v. FRG deserves special attention. The candidate worked as a doctor at the Roman Catholic Church\u27s Foundation Hospital. The applicant and the other doctors signed a letter. The doctors who signed the letter thought that women should be allowed to undergo abortions. The doctor was fired by the hospital. The reason stated was a person\u27s public expression of beliefs that were contrary to the Church\u27s values. The European Commission of Human Rights determined that there was no interference with freedom of expression.[28]
The position of the European Court of Human Rights in the cases discussed above should not be shared. All five of the above-mentioned cases illustrate that the Court of Human Rights, in the area of morality, including religious morality and ethics, grants a wide area of freedom of assessment to nation-states and pays great attention to their valuation. It\u27s worth noting that the European Court\u27s viewpoint has detractors, who frequently appear to be the authors of dissenting views on crucial judgements. Giving States such a wide range of moral judgment flexibility would, in their opinion, make it impossible for the Court to determine a breach of Article 10. In his dissenting opinion, former European Court Judge Spielman, who disagreed with the court\u27s decision in Müller\u27s case, said that nation-states should consider the value of freedom of expression. The European Court should not have jeopardized its role as a guardian over this fundamental right in a free and democratic society.[29] Judge Spielman\u27s opinion should be shared, because free speech includes not only opinions or expressions that are positively perceived by the entire society or even a big part of it, but also ideas, thoughts, or expressions that are unacceptable to the government, shocking to a portion of the society, or certain people. Freedom of expression cannot be curtailed by legislation just because we disagree, are afraid, dislike it, or believe it is incompatible with societal morals or traditions.[30] That is why Article 10 is not the appropriate protection mechanism for free expression; it does not meet the criteria enshrined in Amendment 1 to the United States Constitution.[31]
The US supreme court\u27s standard and legal practices
The United States Constitution is the ultimate law of the country. Any exceptions to the first amendment have come straight from the United States Supreme Court.[32] The U.S Supreme Court has had longer legal and political experience in theorizing free speech values.[33] The First Amendment primarily enhances the intellectual capacity of the community.[34] The "obvious and real" danger test used by the US Supreme Court includes more preconditions for protecting free expression than the European one.
2.1. Brandenburg v. Ohio
The "obvious and real" danger criterion was established as a standard in the case Brandenburg v. Ohio, and it is being used today. The freedom to self-expression is protected unless there is a very high chance of committing an illegal act or causing an obvious and real risk to the public interest, according to the case.[35]
Brandenburg was convicted under the Ohio Trade Unionism Act. The doctrine proposed in Whitney v. California was emphatically rejected by the Supreme Court in a majority ruling. In the judgement, the court outlined the most protective mechanisms of free expression.[36]
The Brandenburg test requires three factors for expression to be prohibited: a clear and unmistakable demand to break the law; expression that, by definition, asks for an immediate violation of the law; and a high chance that the call would result in an immediate breach of the law.[37]
According to the Brandenburg test, which is still in effect today, even the preaching of violence and hatred is protected by the First Amendment unless the elements are clearly recognized. In the Brandenburg case, the United States Supreme Court reversed a Ku Klux Klan member\u27s criminal responsibility for syndicalism.[38]
2.2. Texas v. Johnson
Texas v. Johnson was a fascinating case in which the court said that insulting the American flag in any manner was protected by the First Amendment and that restricting such expression was only permitted in the situation of "obvious and real danger." In the court judgment, Judge Brennan noted that the proper response to flag burning is to raise the flag. Because freedom of speech is guaranteed, punishing someone for burning a flag is unjustified.[39]
In 1984, he organized a protest in Dallas against President Ronald Reagan\u27s policies and the actions of Dallas corporations. Gregory Johnson was arrested and sentenced to two years in jail and a $2,000 fine after burning an American flag in front of Dallas City Hall during a protest.[40] The Texas Supreme Court reversed the decision following an ongoing review, ruling that flag burning was expressive expression allowed under the US First Amendment. The decision was appealed to the United States Supreme Court, which agreed with the arguments of the Texas state court while further clarifying the content of expressiveness of speech.[41]
"To penalize Johnson for burning the flag is to condemn him for the political protest he tried to convey by burning the flag," the court stated. Even the national flag, an essential symbol of statehood, cannot be placed above freedom of expression.
The US Supreme Court supported the Texas Supreme Court\u27s ruling, finding that criminalizing Johnson violated the US Constitution\u27s First Amendment. With this judgement, the court reminded the public that "the role of free speech is to encourage debate." When this function provokes excitement, anger, and rage, it can reach its highest goal.[42]
2.3. United States v. Eichman
A case with a similar problem is United States v. Eichman, in which the United States Supreme Court restated the position it made in Texas v. Johnson.[43]
The Johnson case ruling was met with harsh political criticism. President Bush stated that the court failed in its ruling and that the statute needs to be amended to safeguard the state flag.
Congress enacted a legislation in 1989 making it unlawful to knowingly destroy, burn, place on the ground or floor, or step on the American flag. Texas v. Johnson was considered by Justices Brennan, Kennedy, and Scalia of the US Supreme Court, and President Bush had faith that they would reverse course and maintain the legislation.[44]
Again, a number of social groups protested the passing of the Flag Protection Act. At a demonstration in Seattle, four individuals were arrested, while in Washington, D.C., Johnson and other activists burnt the American flag in front of reporters outside the Congress building. Eikhman was taken into custody by police as a demonstrator. The court ruled that the detention of the specified persons was illegal after citing the ruling in Texas v. Johnson.[45]
The government filed an appeal of both judgments with the Supreme Court, leading to the filing of the case as United States v. Eichmann.[46] The judges did not alter the accepted procedure. Because the Flag Protection Act was designed to restrict speech and ideas, it was ruled to be unconstitutional. We find the following in the decision\u27s text: "Because no one would be interested in the fate of a straightforward piece of flag that any individual is allowed to own, the underlying goal of the Flag Protection Act is to restrict communication and ideas. This action was probably meant to be used as a form of punishment for flag burning."[47] "Government has no right to censor the expression of any concept just because it offends or inconveniences the general population."
2.4. Street v. New York
The relationship between flag burning and freedom of expression has also been discussed by the US Supreme Court in older cases: Halter v. Nebraska[48] and Street v. New York.[49]
In 1969, the US Supreme Court made this ruling. Street ran outside, burnt an American flag, and declared aloud, "We don\u27t need a damn flag if they treat Meredith (the killed civil activist) like that." Street had just learned of the death of one of the civil activists. The stated person was accused of violating the New York Penal Code, which imposes penalties for disrespecting the American flag by words or deeds.
The court ignored the fact that Street actually burned the flag, focusing instead on whether it was constitutional to hold him accountable for his remarks. The court\u27s rationale is intriguing despite the fact that the case was only superficially examined and only the uttered phrase, not the direct action, was analyzed. The question of whether there was a state interest in restricting free speech was examined by the Supreme Court. Attention was given to a number of crucial factors during the debating process, the mere existence of which would be sufficient to restrict Street\u27s right to free speech.
The judges noted in the decision: "1. A person can be restricted if he incites others to commit an illegal act. No one incited Streit to commit an illegal act. He only pointed out that they did not need the American flag, 2. Freedom of expression will be limited when the words uttered by a person cause controversy among those around him, which disturbs the peace and public order. Street\u27s words did not constitute "argumentative words." The developed reasoning proved to be enough to make a valid decision. The majority of judges considered that: "The court cannot support criminal liability based on restriction of expression. No matter how tasteless such expression is, it is protected by the Constitution."[50]
The decisions discussed in the paper, which were resolved by the US Supreme Court, set a high threshold for freedom of expression. In contrast to the European Court of Human Rights, the American standard norm imposes a neutral restriction; analyzing the content and referring to morality are not important to it. As a result, the American standard for freedom of expression is higher than the European standard.
Georgian standard of freedom of expression
The first sentence of Georgia\u27s current Constitution\u27s Article 17 states: "Freedom of thought and its expression is safeguarded. Persecuting someone for having an opinion and expressing it is forbidden. The Georgia legislation on freedom of speech and expression states, in addition to the Constitution, that "the state respects and safeguards freedom of speech and expression as inherent and ultimate human values. These rights and freedoms serve as direct applicable legislation that places restrictions on both the people and the state in the exercise of governance.[51]
To express an opinion, it must be disseminated. This can be done verbally, in writing, or by any other methods, including symbolic expression, which is referred to as freedom of positive opinion.[52]
Symbolic expression is acknowledged as one of the modes of expression and one of the effective means of idea transmission. Press conferences are less likely to generate media and public interest than flag burning. Communicative action is referred to as expressive action or symbolic expression. Of course, the Georgian Constitution and the Georgian Law on Freedom of Speech and Expression guarantee symbolic communication as well as other kinds of expression.
It is clear that the right to freedom of speech and expression is not absolute, and there are legitimate reasons to restrict it. According to Article 8 of the Statute of Georgia, a foreseen, specifically targeted law may restrict the limitation of the designated right. The legislation that restricts this freedom must be non-discriminatory, appropriately restrictive, directly oriented at the accomplishment of legal objectives, and critically important for the survival of a democratic society. In addition to this provision, Article 17 of the Constitution, paragraph 5, also outlines the circumstances in which this right may be restricted.
Conclusion
From the discussion above, it can be concluded that, the American model of freedom of expression imposes a higher standard of protection than the European Convention on Human Rights. The standard of the European Convention on Human Rights allows the assessment of the content of freedom of expression, whereas American model imposes a restriction on freedom of expression only if its intention is to provoke an unlawful act and there is a high probability that such action will take place ("Brandenburg test"). The neutral regulation of freedom of expression that has been established in America is the best safeguard mechanism that any legislator in the world has ever created. Therefore, the standard set by the European Court of Human Rights must be refined and brought in line with the American one.
Based on what has been discussed, we can conclude that the Georgian model protects freedom of speech and expression more than any European nation\u27s constitution or legal system. However, even though the Georgian standard is close to the American standard, it cannot be on par with it in terms of quality because the model created by American precedent law is flawless.
This essay reinforces the idea that the standard of Article 10 of the Convention is not as progressive as the American one. Moreover, the Georgian model is more progressive and result-oriented than the standard established by the European Court of Human Rights.
That is why, the existing regulation needs to be refined to protect the right to freedom of expression more effectively.
Bibliography
Trager, R., Dickerson. D. L., (1999). Freedom of Expression in the 21st Century, SAGE Publications.
Constitutional Law, Cases, (1991) - Comments, Questions: Lockhart, Kamisar, Choper, Shiffrin; American Casebook series,
G. Harris, M.O’Boyle, C. Warbrick, (1995) Law of the European Convention on Human Rights, Butterwarths, London, Dublin, Edinburg.
Lawson A., Schermers, H.G., (1999). Leading Cases of the European Court of Human Rights, second edition,
Braun, S., (2004). Democracy off Balance: Freedom of Expression and Hate Propaganda Law in Canada, University of Toronto Press.
Bollinger, (1986). The Tolerant Society: Freedom of Speech and Extremist Speech in America.
Mendel T., A Guide to the Interpretation and Meaning of Article 10 of the European Convention on Human Rights.
Guide on Article 10 of the European Convention on Human Rights, Freedom of Expression, Updated – 31 August 2020, Council of Europe/European Court of Human Rights, 2021.
Judgment of the Supreme Court of the United States in the case of Brandenburg v. Ohio, June 8, 1969, Freedom o
კონცესიის პერიპეტიები და საკანონმდებლო დეფინიციის პრობლემები
No full textDespite the interesting history of the concession, the existence of official and private legal international foundations and scientific works for the creation of concession legislation, in the legislation of Georgia, it was not possible to determine the academic definition of concession as a legal institution. The nature of the concession agreement was not understood and distinguished, that is, a concession is a transfer of the right, not the property, however, a concession agreement is the way of its realization, that triggers problems of practice regarding assignment to a certain legal sphere, legal regulation, court jurisdiction, selection of law, etc. As the "Foreign element" participates in international private legal relations, state and foreign investor appear as parties in concession relations. For them, favorable situation, protective legal regime and predictable environment are the main factors. Accordingly, the development of concession legislation is of essential importance for the economy of Georgia. In addition to the legal purpose, the concession has an important social function and should ensure the inclusion of the private sector in the economic life and development of the country. In order to refine the legislation, the areas of application should be studied, problems, peculiarities, realities should be identified and it should be calculated what results will be achieved if the relevant legal norms are implemented. Refinement of the concession legislation is directly related to the creation of an investment environment in Georgia. Attracting investments, investors guarantees and efficient use of the countrys resources is a very urgent issue in terms of economic development, job creation and increase of state revenues.
Keywords: concession, term, definition, definition, investment
Introduction
Many countries of the modern world faced the need for legal regulation of public and private partnerships. Most of the new laws apply to all types of public-private partnerships. Concession, as one of the forms of such partnership, requires legislative regularity. In particular, the legal nature of the concession has already been analyzed in the science of law, which should be followed by a legal definition reflecting the real immanence of the concession in the legislation of Georgia. The definitions presented in the repealed 1994 and current 2018 laws regarding the concession are completely misleading from the legal content of the concession and its academic definition should be established.
Chapter I
The issues of public-private partnership are known from the time of ancient Iran, Greece and Rome before BC, the development of which continued in medieval France, Holland, Spain and England, which was represented by the transfer of the right of tax collection by the state to a private person.
In all states of ancient Greece, the collection of taxes was carried out by private individuals, and in Rome, a trade, an auction in the modern sense, was held to give the right to collect taxes.[1]
The history of Georgia has not ignored the concession relations, and it is known from the first documentary sources that in the 40s of the 18th century, King Erekle II concluded a concession agreement with the Greek "Madanshiki" for the purpose of reviving the ore production, which was related to the processing of copper and gold-silver deposits. King Erekle invited a group of Greek "madanshiks" from Turkey, who began working on a silver deposit in the vicinity of the Akhtali monastery. In 1763, mining production was widely developed. The description of the business deal between the king and the arrived Greek masters is interesting, which is nothing more than the first written Georgian concession agreement. The king was considered the owner of production.
Similar forms of partnership between the state and the private sector can be found in the cases of dye production and the management of the King\u27s Mint. A glass factory, a salt factory, an earthenware manufacturer, and other small enterprises were given to manage.[2]
An event reflecting the active concession relations in Georgia was the "Chiatura Black Stone Concession Agreement", signed on June 12, 1925 for a period of 20 years, between the Union Concession Committee of the Soviet Union and the famous American industrialist William Averell Harriman.
The story of this agreement ended with the discussion of the dispute in the New York arbitration court, where the interests of the Soviet Union were defended by the famous Georgian lawyer, professor of Tbilisi State University Luarsab Andronikashvili.[3]
At the end of the 20th century, a new impetus was given to the development of concession relations, and discussions about the legal nature of the concession became active in the sphere of lawyers, which was significantly influenced by free international relations and investment activities.
Chapter II
In the modern world, several main forms of public-private partnership have been identified: private finance initiative (PFI); Institutional Public-Private Partnership (IPPP) and concession (concessio).
A Private Finance Initiative (PFI) contract is mainly used for relatively small projects. Unlike large concession projects, it provides the possibility of financing non-commercial projects in its field of application. The content of the PFI agreement is to carry out activities on behalf of the state in sectors such as schools, hospitals, prisons, public buildings, public facilities and non-profit services, without the delegation of state rights.
The form of Institutional Public-Private Partnership (IPPP) is a collaboration between the state and the private sector that provides for the creation of mixed capital. Its purpose is the execution of state contracts and the implementation of concessions. The contribution consists of different types of assets and the implementation of the contracts is carried out with the active supervision and participation of the representative of the state.
The European Commission has published "Guidelines for the Organization of Institutional Public-Private Partnerships", which clarifies the rules applicable to participation in public-private partnerships and increases legal certainty. It also ensures fair competition and means of selecting a private partner through a tender.[4]
A concession relationship is a form of cooperation between the state and the private sector, based on mutually beneficial contractual terms, involving the private sector for the efficient management of state property or services. Concession refers to the transfer of the right to exploit natural resources, infrastructure facilities, enterprises or equipment under certain conditions and compensation.
Concessionaires are usually powerful companies that take concessions for various facilities in economically weakly developed countries. Such companies are granted wide rights in various fields of farming, which should ensure the economic development of the country.[5]
Chapter III
The legal guidelines of the United Nations Commission on International Trade Law (UNCITRAL), the main elements of the concession legislation of the Organization for Economic Cooperation and Development (OECD) and the main principles of the European Bank for Reconstruction and Development (EBRD) on modern concession legislation are the basic documents in terms of the creation or improvement of concession legislation, which are international legal bases recognized in the world and already implemented in many countries. These documents laid the foundation for the creation of modern legislation, and they are being updated to this day.
These organizations still contribute a lot to the development of the concession as a legal institution, and I will generally touch on the above-mentioned documents created as a result of their work.
In June 2000, the United Nations Commission on International Trade Law (UNCITRAL) adopted the "Legislative Guidelines on Privately Funded Infrastructure Projects", the so-called "Legislative Guide", which will help the governments of the member countries to create favorable conditions for the financing of the legislative structure and private infrastructure projects.
UNCITRAL\u27s "Legislative Guide" deals not only with infrastructure projects, but also with the use of natural resources and focuses on the essential features of legislation.
The main focus is on the procedure for concluding the concession agreement. In its structure, there are dozens of recommendations of the organizational nature of concluding a concession agreement, which are grouped by content.[6]
If we analyze the "Legislative Guide" from the point of view of finding and recognizing the immanence of the concession, it will appear that the concession by its legal nature implies the transfer or surrender of the right, not the property.
For example, one of the recommendations limits the permission of the concessionaire to assign the right transferred from the state to a third party without the consent of the state. Here, too, we are talking about giving up rights, not property. Also, the content of the transfer of rights and not property can be seen in the recommended rules for the operation of the infrastructural object.
A group of experts from the Organization for Economic Co-operation and Development (OECD), the Istanbul Stock Exchange (ISE) and the Network for Information Services (NIS) developed the "Core Elements" of OECD Concession Law.
It outlines the guiding principles of creating a modern law on the concession agreement in legislative language and provides comments on these principles against the background of advanced international practice, which in fact represent a model of the relevant law of the European Union legislation. They are presented in the form of legal terms that can be used in national legislation.
In the "basic elements" we are interested in the issues of harmonization of the legislation on the concession agreement and the common approach to the terminology on the concession, the analysis and judgment of which will lead us to the conclusion that the concession is the transfer of the right and not the property.
In 2005, the European Bank for Reconstruction and Development (EBRD), whose aim and purpose was to outline and promote modern principles in the countries of the Bank\u27s operations, developed the "Core Principles for a Modern Concession Law (MCL)”.[7]
The EBRD\u27s "Core Principles" are based on internationally recognized key standards, best practices, regional studies, sector studies and assessments, as well as the UNCITRAL Model Legal Provisions for Privately Funded Infrastructure Projects.
From the "Core Principles" of EBRD, the principles of compliance of the concession legislation with the country\u27s legal system and individual laws are of interest to us.
It implies that the norms of the law must be consistent with the law of the country, the general structure and the special legislation, which is necessary to ensure that the separate parts of the legislation do not contradict each other, and the application of the individual acts is as clear as possible.[8]
In addition to the above-mentioned documents, there are interesting scientific works and opinions on the concession in the science of law.
Chapter IV
Concession, by its legal nature, can belong to the administrative law, private law or can be mixed.
The concession as an administrative act was considered by the Swiss-German doctrine, the followers of which believe that the concession is a manifestation of the highest right of the state, does not come from the civil sphere, and it cannot have the meaning of a contract.
The contractual theory of concession developed in France, where it was considered as an administrative contract. Since the case concerned property interests, the concession relationship was regulated by the principles of civil and public law. The concessionaire was not a public official, he was given the right to exercise public authority based on the contract.
The basis of the concession as a mixed act derives from the reasoning according to which it is a combination of an administrative act and a civil contract. The problem of such a complex approach, theory, which originated in Latvia, remains the issues of the methods of regulating the concession relationship.[9]
After the above-mentioned excursion, it will be easy to see and evaluate the current legislation in Georgia.
Chapter V
After the restoration of Georgia\u27s independence, the creation of new legislation of the country began, the concession relations were regulated by the Law of Georgia of December 21, 1994 "On the Procedure for Granting Concessions to Foreign Countries and Companies", which determined that "a concession is a long-term lease agreement signed by the state for the purpose of foreign capital investment on the exploitation of renewable and non-renewable natural resources and other related economic activities".
The purpose of the investment was highlighted and the concession relationship was defined as a private legal nature - "lease agreement", and according to the Law of Georgia "On Licenses and Permits", the permission of the authorized administrative body was required for the conclusion of the concession agreement.
If property (natural resources) were to be transferred through a civil legal institution - in the form of a lease, then what was the need for a separate concession legislation.
A concession differs from a lease only in its characteristic features: one of the parties to the concession relationship is always the state; the concession object can only be state property; the object of the concession may be the transfer of a special right of the state to the concessionaire, and the concessionaire cannot become the owner of the transferred property. This list is not complete and it is possible to highlight other signs.
Unconditionally, the main distinguishing feature of the concession remains its public-legal motives, elements and conditions. First of all, this is a special basis for the emergence of concession litigation, which cannot be a civil transaction.
Also, one of the main features distinguishing a concession from a lease is that a governmental act (iure imperii) is required to conclude a concession agreement, and in order to enter into a lease agreement on state property, it is sufficient to show the will of the state in the form of a civil transaction (acta iure gestionis).[10]
In the case of a concession, the right is transferred, not the property, so the definition of the concession in the above-mentioned law missed its true content.
If in 1994 there was a lack of information in Georgia about the legal nature of the concession, in 2018, when developing a new law, the legal definition of the concession should have been analyzed in detail.
In addition, the appearance of specialists in private international law as a new branch of law in Georgia and their works on concessions created a more informative environment and their involvement would also help the case. Also, there are scientific works of foreign lawyers on the characterization of the concession as a legal institution.
From a theoretical point of view, the idea that a concession is a transfer of rights by the state, not property, and represents an independent legal institution, has already been established as a clear doctrine in the science of law. According to the families of law, the concession can be administrative or civil in nature, and in common law countries, where there is no division of law into private and public law, the concession and the concession agreement are also private legal relations.
As for practice, i.e. Positive law in force on concession in Georgia.
In the recent past, the majority of countries regulated concession issues through national law, and the issue of public-private partnership in a broad sense remained in the field of the general structure of law and state policy. Then, the situation changed and new trends emerged. A number of countries have started creating new separate laws on public-private partnerships, in which concessions are presented as one form of public-private partnership.
The Law of Georgia "On Public and Private Cooperation" dated May 4, 2018 repealed the above-mentioned Law of Georgia dated December 21, 1994 "On the Procedure for Granting Concessions to Foreign Countries and Companies" and formed the definition of concession in a new way.
There was an expectation that the new law would correct the situation, but even in this case it was not possible to determine the legal definition of the true legal nature of such an important and relevant legal institution - the concession. On the contrary, it was leveled and again lost from its true content.
However, it should be noted that in the new law, the modern approaches defined for the creation and refinement of concession legislation are considered and innovations are also proposed, but the subject of our interest and discussion is the academic legislative definition of the legal nature of the concession.
The new law of 2018 presents an "updated" definition of concession, according to which it is "a public-private partnership, during which, based on the concession agreement, the concessionaire directly or indirectly receives payment from the end user or public partner and from the end user in return for the public services provided by him and within which the Concessionaire assumes significant operational risk, which includes demand risk or supply risk".
It is a positive element that the legislative record recognized the concession as one of the types of public-private cooperation and that this relationship is for the purpose of providing public services. Therefore, there is a co-operation for the private sector to act instead of the state in order to exercise mandatory public powers.
In the text of the definition, the key words defining the immanence of the concession have been turned over and it continues with the fact that it is a form of public service. Then, attention is paid to the manner of compensation for the concessionaire and the issues of taking operational risks by the concessionaire, which are the subject of the agreement and not of the legal definition of the concession.
The above legal definition states that a concession is a public-private partnership based on a contract, in the field of public services, and for these services the concessionaire receives compensation, which is very general and unclear. The General Administrative Code tells us the same thing, that an administrative contract is "a civil-legal contract concluded by an administrative body with a natural or legal person, as well as with another administrative body, for the purpose of exercising public authority." Where the line is drawn between these two situations is a matter of separate discussion. According to families of law and national legislation, the concession can be of both public and private nature.
The legal definition of the concession does not contain the main words characteristic of its legal nature, as it is presented in the Civil Code of Georgia for other legal institutions. For example, in the case of entrusting the property, the trustee transfers the property to the entrusted owner for management, in the case of a gift - the item is transferred to the property, in the case of rent - the item is transferred for use, in the case of leasing - the transfer of the property for use with the right to purchase it, in the case of lease - the temporary transfer of the property for use with the possibility of receiving fruits. Their realization in life is carried out by relevant agreements.
In the legislative space, the precise definition of the concession as a legal institution and the characterization of its legal nature remained unclear.
Chapter VI
When talking about the concession, it is very important to distinguish between the fact that the concession is a legal institution, with a specific formula regulating public relations, and the concession agreement is a means of realizing this relation in life. Confusion or identification of their contents is completely unacceptable and causes many problems.
In the definition of the new law, it is not at all clear why the definition of the concession includes such contractual terms as the manner of payment to the concessionaire and one of the obligations of the counterparty - to assume operational risks.
The separation of the legal nature of the concession and the concession agreement, in addition to the theoretical orderliness, has an essential practical meaning, because public and private legal mechanisms go through different legislative paths and the rights and obligations of the parties, legal guarantees of protection, judicial review and the possibilities of reviewing the dispute in another country are regulated differently.
The concession agreement, as a form of expressing and realizing the concession relationship, is a consensual, specific term, compensatory and bilateral agreement for the parties. It provides for the existence of the respective rights and obligations of the two parties, as well as the will of the parties to enter into the said contract. The concession agreement is essentially different from the agreements of other legal institutions.
The degree of interdependence between public and private parties - the state and the concessionaire, in concession relations is much higher than in other types of legal or contractual relations. The concession contract affects both public and private interests.[11]
Conclusion
The issue of determining the true content and legal nature of the concession remains a problem in the legislati
Judicial review of arbitral award: a policy review on delimitation of patent illegality in india
Get PDFIn the legal interpretation of the grounds for setting aside arbitral awards, the ambiguity in the recourse against an arbitral award is an issue of genuine concern and relevance. The various amendments and judicial precedents made under Section 34 in the Arbitration and Conciliation Act 1996 have provided a near end to the definition of Public Policy. However, it is still an area that requires various changes to make the practice of setting aside Arbitral awards an exception rather than a regular exercise. One of the reasons for annulling or refusing to implement an arbitral judgment is “patent illegality,” which has generated intense debate among practitioners both in India and abroad. This research article discusses the nuances in highlighting the flaws and loopholes contributing to the execution and non-execution of arbitral awards. This research article discusses the jurisprudence and various precedents in the context of Patent Illegality under the Public Policy of India and how the Supreme Court of India, in multiple instances, contradicted its judgements and provided a vagueness in interpreting the setting aside of Arbitral Award in different scenarios.
Keywords: Judicial Review, Patent Illegality, Arbitration
IntroductionAn act by the name of \u27The Arbitration and Conciliation Act, 1996\u27 ("Principal Act" or "the Act") was enforced in India w.e.f. The 19th of August 1996. The Act provided the settlement of disputes by the most common form of alternate dispute resolution mechanism, i.e., Arbitration. To ensure justice, it was necessary that recourse against a decision passed through the process of Arbitration- called the Arbitral Award- exist. This was facilitated through Chapter VII of the Act. The sole section of this chapter- Section 34, has been revamped by the Arbitration and Conciliation Act (Amendment) Act, 2015 of AC Act ("Amending Act"). This amendment was based on the recommendations given by the Law Commission in its 246th Report[1] as a result of three landmark judgements, namely- ONGC vs Saw Pipes (2003) 5 SCC 705, ONGC Ltd. v. Western Geco International Ltd. (2014) 9 SCC 263, and Associated Builders vs DDA (2015) 3 SCC 49. However, the amendment seems to house multiple widely debated and conflicting points in the courts.
Patent Illegality and Meaning of Public Policy in India
The ground of \u27Patent Illegality\u27, amongst other groups, has been debated in the Court of India. In ONGC Vs. SAW Pipes[2], the Apex Court defined "patent illegality" in detail and brought it within the realm of Indian public policy for the first time. Before this interpretation, the unamended Act did not include the ground of \u27Patent Illegality\u27 to set aside an Arbitral Award. This was done by broadening the only existing foundation of \u27Public Policy and by interpreting the ground from a post-amendment perspective.
Before the amendment, Section 34 of the Act provided grounds for setting aside an arbitral award under clause (2)(v)(ii). The Court could mention that such award conflicted with the Public Policy of India. However, what constitutes this Act or any enactment did not define this. The phrase was open to interpretation in an extensive sense, giving it the capacity to develop and evolve along with the dynamic law. Such evolution is visible upon reading the judgements pronounced in this regard.
In the case of Renusagar Power Co. Ltd vs General Electric Co. 1994 SCC Supp (1) 644, in paragraphs 67 and 76, a Three-Judge Bench of the Apex Court interpreted the meaning of Public Policy of India about the Foreign Exchange and Regulation Act and the illegality of a foreign award under section 7(1)(b)(ii) of Foreign Awards Act. After examining the two regulations relating to Foreign Awards, it held that the purpose of the Acts was to protect the country\u27s economic interests and hence any violation of such legislation would be against the public policy.
In ONGC Vs. Saw Pipes[3], a Two-Judge Bench of the Apex Court, considered the opinion as mentioned earlier but opined that interpretation of the expression "public policy of India" must be done in the context of the jurisdiction of Courts where the validity of an Award is challenged, unlike in a proceeding for the enforcement of a foreign award as done in Renusagar case. Under Paras 15, 20, 22, 28 and 31, it was held that, on the principle that no narrow meaning should be given to the expression "public policy of India" in the case where an award that is challenged as materially different from a proceeding where a foreign recognition is sought to be enforced. It was concluded that a domestic arbitral award could be set aside as "patently illegal" if it violates substantive provisions of an Indian Law, the Principal Act (AC Act), or the contract terms between the parties.
Again, in the case of McDermott International Inc. v. Burn Standard Co. Ltd.[4], a slight change in the notion of what would be "public policy" was noticed in the previous two cases. In addition, the Court held that the scope of the expression would change based on the case and the nature of the transaction in such case but also held their ground in being bound by the decision in the case of ONGC[5].
Similarly, the Court, in the case of Centrotrade Minerals & Metals Inc. v. Hindustan Copper Ltd.[6], followed its precedents and held that violation of "public policy" should be considered as a valid ground to set the arbitral award aside. However, it also pointed out that such patent illegality must be found at the core of the matter and should be, without doubt, not fair or reasonable. Thus, if the Arbitrator has not protected such ground, it would be liable to be challenged under Section 34.
Further, a three-judge bench in ONGC Ltd. v. Western Geco International Ltd.[7] in Paras 34, 35, 38 and 39 not only acknowledged the validity of the dicta in Saw Pipes but also further held that the expression of the fundamental policy of Indian law is a comprehensive concept with multiple aspects included such as the judicial approach that the Arbitrator must be following, the Principles of Natural Justice the fundamental Wednesbury Principles that are perversity and irrationality. These aspects are to be kept in mind when it comes to adjudicating the validity of an arbitral award.
A two-judge bench in Associate Builders Vs. Delhi Development Authority[8] further added to the existing interpretation that a disregard of a decision of a Superior Court is violative of the fundamental policy of Indian law in Para 18 to 26. Thus, the heading of "patent illegality" was divided into three subheads through this judgement as follows-
contravention of the substantive law of India referable to section 28(1)(a) of the Principal Act.
Contravention of the Arbitration Act.
Contravention of Section 28(3) of the Arbitration Act, i.e., adherence to terms of the contract.
New Developments: Analysis
Newer judgments have also identified multiple factors that would be considered \u27Patent Illegality\u27, thus becoming a valid ground to set aside an arbitral award. However, there still seems to be an ambiguity[9] in what exactly would be reasonable to be construed as \u27Patent Illegality\u27. In the recent judgement of I-Pay Clearing Services Private Limited v. ICICI Bank Limited[10], the Supreme Court stated that there must be a finding on the issue under contention, not mere reasoning. The rationale was that, without any finding, reasoning alone could not cure a defect in the award. The Court would then be unable to exercise its power under Section 34(4) as the record seems prima facie patently illegal.[11]
In another recent judgement, while setting aside the award in the case of World Sport Group (India), Private Ltd v Board of Control for Cricket in India, Justice BP Colabawalla[12] noted that challenging an arbitral award was not the same as filing an appeal, one of the grounds for challenging a domestic arbitral award, even after the Act\u27s amendment in 2015, was that it had patent illegality.[13]
Also, from another point of view, the recent judgment restores the limited extent of involvement that courts have under Section 34 of the Act. The Division Bench\u27s observations mirrored its approach to adjudicating an appeal, similar to that of a civil court. Moreover, The Supreme Court also reaffirmed the limited elements of patent illegality and Indian public policy, demonstrating the counter posture maintained to support the arbitral process rather than undermine faith in it. Significantly, an arbitral award arising from a construction dispute is often hindered by the debtor\u27s propensity to file a motion to set aside the award. During this time, the genuine award-holder may face cash flow problems, which could have a cascading effect on its participation in additional projects. As a result, courts must consider these variables and make every effort to resolve such conflicts quickly.
The Court in Patel Engineering[14] noted that the amended section 34 provided an additional, albeit narrowly defined, ground of patent illegality for setting aside a domestic arbitration award. However, this ground did not apply to awards arising from international commercial arbitrations under Part-I of the 1996 Act. The Court cited Associated Builders, saying that drafting a contract\u27s provisions is essentially the Arbitrator\u27s responsibility. Furthermore, it was recognized that \u27patent illegality could not be asserted to fight enforcement in foreign awards under the New York Convention because it is not an eligible ground under section 48 therein.\u27 Only when the Arbitrator construes the contract in a way that no fair-minded or reasonable person would it be considered patently illegal. The latter is covered under the ground of \u27patent illegality in amended section 34.
Furthermore, the Supreme Court in PSA SICAL Terminals Ltd. v. V.O. Chidambranar Port Trust[15] ruled that the arbitral tribunal\u27s change of law decision was based on "no evidence" and "ignorance of key evidence," rendering it irrational and subject to review.
Anomalies under the AC (Amendment) Act, 2015- Prospective or Retrospective
Section 26 of the Amending Act states that the Amending Act shall not apply retrospectively to any arbitral proceeding unless the parties agree to the contrary, i.e., it shall not use proceedings commenced before the commencement of the Amending Act. However, in its second part, it makes itself applicable to any proceeding concerning the arbitral proceeding commenced on or after the date of its commencement. Nevertheless, the proceedings would mean any such proceeding commenced under Section 21 of the Act. The question of the retrospective and prospective effect has often been a matter of debate even amongst the judgements that have been pronounced in the matter.
In the case of BCCI vs Kochi[16], such prospective and retrospective application was interpreted in Para 5, 39, and 75. The Court observed that the section clearly distinguished between arbitral and related court proceedings. In its interpretation of the language of the Amending Act, it presented its opinion that in the first part, the arbitral proceedings are provided for; thus, the second part only refers to court proceedings that relate to the arbitral proceedings. Therefore, they have held that the scheme of the section is clear enough to indicate the prospective nature of the application. Through this judgement, the Apex Court made it clear that such \u27Retrospective effect\u27 will be only about the amended Section 36, which talks about the stay of the Arbitral Award and not the other amended provisions, including Section 34.
However, in the case of Ssangyong Engg. vs Construction Co. Ltd.[17], a Two-Judge bench gave an opposing observation on this point in Para 19. They noticed that through prior judgements, there was a change of ideology and that the courts sought to do away with the expansion of "public policy" and introduce the concept of "patent illegality", which has certain inherent exceptions. Thus, they held that the amended Section 34 would apply to any application in relation to the award made post the amendment regardless of the date of commencement of the proceeding. So say, even if the proceeding had commenced and the award had been given on a date before the amending Act\u27s inception, the amendment would still apply as long the application seeking the setting aside of the award was filed post the amending Act commencing.
Such opposing views as presented in the Kochi Cricket Club Case and the Ssangyong Engg. The case upon the point of Section 34 and its applicability has presented an incoherent front and no clarity upon the section\u27s retrospective nature or lack thereof. This also makes matters of scope and jurisdiction a problem given the polar opposite nature of the pre and post-amendment grounds of challenge available against an arbitral award.
To provide context, the judicial interpretation of Section 34, before the amendment was given through multiple judgements such as ONGC Vs. Saw Pipes (2003) 5 SCC 705; McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181; DDA v. R.S. Sharma and Co., (2008) 13 SCC 80; ONGC Ltd. v. Western Geco International Ltd. (2014) 9 SCC 263; Associate Builders Vs. Delhi Development Authority (2015) 3 SCC 49; and Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd. (2017) 2 SCC 228.
Through these, the courts have consistently held that if a domestic arbitral award is contrary to either the substantive provision of substantive law or to conditions of the Arbitration Act or terms of the Act between the parties, then it is patently illegal and can be set aside. This view in the above cases was consistent through the levels of the Court with a minor addition that the binding effect of the judgement of a Superior Court being disregarded is also violative of the fundamental policy of Indian Law. [18]
The clear distinction restricted by Section 26 of the Amending Act was made incomprehensible and unclear by the contradictions that arose in the views of the Apex Court in the two cases, i.e., the Kochi Cricket Club case and the Ssangyong Engg. Case.
In a prior Judgement, it was implied that the laws would act only prospectively when it came to a matter of the appeal. In the case of Garikapatti Veeraya vs N. Subbiah Choudhury[19], the apex court held in para 23 that the appeals arising out of a suit instituted would form part of one legal proceeding and since the right to appeal was a substantive right. Such freedom is to be governed by laws existing at the time the suit was instituted rather than the time the appeal was filed. It also held that such a right could be taken away only by a subsequent enactment that, intending to take it away, expressly provides for such removal of the request. Thus, yet another contradiction arises as the second part of Section 26 of the Amending Act was held to imply retrospective application of the amendment. However, this judgment supports the principle that only procedural provisions can be given a retrospective effect, such as Section 36 of the principal Act.
Finally, another amendment in 2019, Section 87 of the principal Act, was amended to clarify the confusion regarding Section 34. The amended Section 87 provides that the Amending Act of 2015 will only have a future effect. That is to say; the amendment would apply to proceedings commenced after the amendment. It would not apply to the judicial proceedings commenced after the amendment if such proceeding is with respect to a suit commenced before the amendment of 2015.
Post Amendment – Anomalies, Inconsistencies and Tinkering with Principles Set out in Earlier Judgements
The decision in the Ssanyong Engg. Vs. Construction Co. Ltd. case did create multiple contradictions in the position of the law. However, it is pertinent to note that the unamended Act, including section 34, did apply in the case. Further, it is an established principle that the correctness of an Apex Court interpretation of the law would not be questioned. Thus, the dicta of the Associate Builders case was upheld in the Ssanyong case. It was held that the law violations or disregard for a binding judgement would be a valid ground to appeal against an award under Section 34. But there were also inherent inconsistencies in the opinion. In the same case of Ssangyong Engg., the Court held that specific observations of Associated Builders are no longer suitable in the eyes of the law.
More contradiction arose when the Court in Ssangyong Engg. Held that violation of substantive law would not be a ground for challenging the award post the amendment as it was devoid of consideration for the provision made by Section 28(1)(a) of the Principal Act, which requires the Arbitral Tribunal to abide by the substantive law of India while deciding a dispute referred to it. Thus the idea that the Arbitrator had to follow the substantive law but any error or non-compliance would not be a valid ground to seek for such an award to be set aside.
The legislature did not intend to include "error of law" as a separate reason for setting aside domestic awards under Section 34(2)(b)(ii) of the Act.[20] In reality, the Court\u27s view of public policy is so broad that it could lead to an avalanche of arbitral decisions being challenged in Indian courts. Section 34 of the Act and the associated UNCITRAL Model Law rules were arguably meant to restrict this judicial review of the merits of the case in order to ensure the finality of arbitral rulings on the merits. The ratio of the verdict does not correspond to the Act\u27s goal. Some authors advocate for a middle path. According to them, the so-called "mistake obvious on the face of record" test should be used as an "all-weather" solution.[21] However, given the thorough scope of the justifications listed in Section 34, such a solution is redundant.[22]
The contradictions continued to be a problem for the parties opting for Arbitration even in the post-amendment context. The Apex Court in DAME vs DMRC[23], in paras 26 and 27 held the illegality must be in the core issue and not every error of law[24] or the erroneous application thereof would constitute a \u27patent illegality. It further went on to say that such infringement should be against public policy or interest. It held, therefore, that unless the decision reached by the Arbitrator is so flawed, it cannot be made possible or is unreasonable, or there is an error of jurisdiction by the Arbitrator due to overstepping of the contract, there would be no ground to re-try the matter for the award. However, they also held that any decision for the arbitral award must be elucidated and should be based on consideration of all available evidence. In conclusion, they held that the award must be erroneous to the effect of "shocking the conscience of the court" or should be inherently immoral to be liable to be set aside.
The judgement in DAME upheld the Ssangyong Engg. Decision without thought denoted a very narrow meaning to the concept of "public policy of India", which was again adopted by Renusagar with no consideration being given to the other judgements passed. Such a narrowed perspective that limited the grounds for appeal against the arbitral award was further continued as the settled proposition with no consideration given to the previous interpretations and ratios.
Conclusion
In the light of the anomalies mentioned earlier, the judgement in Kochi Cricket Club interpreting section 26 of the amending Act in Para 5, 39 and 75 and a contrary opinion in Ssangyong Engg. (supra) in Para 19, which renders the first part of section 26 of the Amending Act otiose and redundant.
The opinion in Ssanyong Engg. (supra) interpreting amended section 34 while tinkering with judicial opinion in a series of judgement ONGC Vs. Saw Pipes (2003) 5 SCC 705; McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181; Centrotrade Minerals & Metals Inc. v. Hindustan Copper Ltd.-I (DB) (2006) 11 SCC 245; DDA v. R.S. Sharma and Co., (2008) 13 SCC 80; ONGC Ltd. v. Western Geco International Ltd. (2014) 9 SCC 263; Associate Builders Vs. Delhi Development Authority (2015) 3 SCC 49; and Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd.,-II (FB) (2017) 2 SCC 228 interpreting unamended section 34 requires clarification by reconsideration by a Larger Bench.
The judgement in DAME (supra) follows Ssangyong Engg. (supra) blindfolded, resurrecting the narrow meaning of the expression of "public policy of India" rendered in Renusagar (supra) completely ignoring the dicta of unamended section 34 from Saw Pipes (supra) to Centrotrade (supra) requires immediate clarification and consideration.
The judgment in Patel Engineering continues the emerging judicial trend of establishing a pro-enforcement Indian arbitration regime, which commenced with the decisions in Associated Builders and Ssangyong Engineering. Interestingly, while section 34 of the Act has been recently amended by the 2019 amendment, the legislature has not modified the sub-section(2A).[25] It shows their intent to limit judicial intervention on the ground of \u27patent illegality, in cases of awards rendered in purely domestic arbitrations as 2015 amendments, along with the judicial precedents of Associated Builders and Ssangyong Engineering.
Furthermore, the Supreme Court in Delhi Airport Metro Express Private Limited vs Delhi Metro Rail Corporation Limited[26] upheld the arbitral tribunal\u27s findings, stating, "As the arbitrator is the sole judge of the quality as well as quantity of the evidence, the task of being a judge on the evidence before the Tribunal does not fall upon the court in
არასრულწლოვანი შვილის საცხოვრებელი ადგილისა და უფლებამოვალეობების განსაზღვრა მშობელთა განქორწინებისას
Get PDF The thesis is about "Determining the place of residence and rights and responsibilities of a juvenile child in the case of parental divorce" which focuses on one of the most acute and always controversial problems in our country. In Georgia, there are frequent cases when the parents of a juvenile are divorced or living separately and can not agree about with whom to stay their child to raise. Judicial practice in this regard is common and in every new case are made largely different decisions. There are exceptions when there is no dispute between the parents and they decide for themselves with whom the juvenile should be brought up, so the analysis of each case is considered. In this thesis, we have discuss about the protection of the interests of the juvenile, the involvement of the guardianship and custodial authority , which plays a major role in the decision-making process by the court, as it is crucial for them to thoroughly study the case and determine the psychological state of the child and the essence of the interim order issued by the court, as well as the consideration of the interests of the juveniles in determining their place of residence. The research also covers the definition of parental rights and responsibilities in the above case, which is one of the most important issue. Also, there is a little attention about situation not only in Georgia, but also in other countries in this regard
ქორწინების სამართლებრივი რეგულირება
Get PDFThe present article deals with marriage, as one of the important institutions of family law. With the development of mankind marital relationships have also changed significantly. The article discusses legal nature of marriage and related legal regulations. The article discusses the legal nature of marriage and related regulated to it. Marriage has a centuries-old history and it takes its origin from the birth of mankind. Today the study of the institution of marriage is driven by the needs of society. This instutation can be considered as a livind organism, that requires development and growth. At various stages, the norms of family law have lost their force in modern times. An increase in the needs of society leads to a change in a legal relationship that directly regulates a person’s right to be a member of perfect society. Therefore, marriage is a complex phenomenon built on social relations, which includes legal stages; registration of marriage, rights and obligation of spousec during the marriage, divorce, it can be bodly said, that it is one of the inportant institutions of family law. In this article we try to present the importance of marriage registration and discuss the legal consequences associated with it. It’s fact, that the institution of family law is very broad. Currently our area of interest is legal registration, for which we will analyze the existing legal framework. We will review the court decision and share the practice of foreign countries on this issue.წინამდებარე სტატია ეხება საოჯახო სამართლის ერთ-ერთ ძირითად ინსტიტუტს – ქორწინებას. კაცობრიობის განვითარებასთან ერთად საქორწინო ურთიერთობებიც მნიშვნელოვნად შეიცვალა. სტატიაში განხილულია ქორწინების იურიდიული ბუნება და მასთან დაკავშირებული სამართლებრივი რეგულაციები. ქორწინებას მრავალსაუკუნოვანი ისტორია აქვს, ის საწყისს იღებს კაცობრიობის დაბადებიდან. დღევანდელობაში ქორწინების ინსტიტუტის შესწავლა განპირობებულია საზოგადოებრივი მოთხოვნილებებიდან გამომდინარე. აღნიშნული ინსტიტუტი შეიძლება მივიჩნიოთ ცოცხალ ორგანიზმად, რომელიც მოითხოვს განვითარებასა და დახვეწას დროის სხვადასხვა ეტაპზე. საოჯახო სამართლის წარსულში მოქმედმა სამართლის ნორმებმა თანამედროვეობაში ძალა დაკარგა. სოციუმის მოთხოვნების ზრდა ცვლილებას იწვევს ისეთ სამართლებრივ ურთიერთობებში, რომლებიც უზრუნველყოფს პირის უფლებას – იყოს სრულყოფილი საზოგადოების წევრი. მაშასადამე, ქორწინება არის რთული, სოციალურ ურთიერთობებზე აგებული ფენომენი, რომელიც თავისთავში მოიცავს სამართლებრივ სტადიებს: ქორწინების რეგისტრაცია, მეუღლეთა უფლება-მოვალეობანიქორწინების განმავლობაში, ქორწინების შეწყვეტა/განქორწინება. შეიძლება თამამად ითქვას, რომ საოჯახო სამართლის ერთ-ერთყველაზე მრავალწახნაგოვან ინსტიტუტს სწორედ აღნიშნული ინსტიტუტი წარმოადგენს. წარმოდგენილ სტატიაში ქორწინების რეგისტრაციის მნიშვნელობის წარმოჩენასა და მასთან დაკავშირებული სამართლებრივი შედეგების განხილვას შევეცდები. ცნობილია,რომ საოჯახო სამართლის ინსტიტუტი ძალიან ფართოა. ამჟამად ჩემი ინტერესის სფეროს ქორწინების სამართლებრივი მოწესრიგება წარმოადგენს, ამისათვის გავაანალიზებთ არსებულ საკანონმდებლო ჩარჩოს, მიმოვიხილავთ სასამართლო გადაწყვეტილებებს და გავიზიარებთ უცხო ქვეყნების პრაქტიკას აღნიშნულ საკითხთან დაკავშირებით. 
მონალექი, როგორც საკუთრების უფლების შეძენის საშუალება რომაულ და ძველ ქართულ სამართალში
No full textThe article discusses sediment as one of the sources of acquisition of property rights in Roman and ancient Georgian law. Even Roman jurists drew attention to the fact that the flow of the river sometimes led to an increase or decrease in land plots adjacent to the channel. The article examines the rules related to sediment in Roman law and Georgian feudal law, based on the analysis of which the types of sediment were distinguished, in the form of insignificant increase of land over time. Attention is also focused on the scope of the right, which was extended to the land that arose on river’s bottom as a result of the drying of its bed. Research has shown that under Roman law, the rights of owners of land adjoining a river depended entirely on where the land was split, whether in the middle or closer to either bank, due to the fact that the river flooded the other side. Based on the comparative analysis of Roman law and ancient Georgian law, the fundamental difference between their approaches was highlighted. The national law shows more conservatism when regulating the legal relationship arising due to the change of the river bed, which is also emphasized in the article. Due to the scarcity of the legal base on sediment, in order to achieve the goal of the research, using the analogy of the law, the rules for obtaining ownership rights to minerals are discussed, since it is closest to sediment.
Keywords: ownership acquisition, sediment, mineral.
Introduction
The article is the first attempt to study the “Monalekh” (sand from sea or river) to acquire property rights in ancient Georgian law, which makes this issue relevant. The research subject of the article is the types of precipitation and their accompanying legal consequences. The research was carried out in Roman and ancient Georgian law, using the method of comparative legal analysis. The task of the research is to determine the common and distinguishing features of these two legal systems regarding rainfall. The difficulty of the research was due to the lack of primary sources, as well as secondary and tertiary sources in the old Georgian law, which is why we used the analogy of the law - through the acquisition of property rights to minerals.
1. Legal characterization of precipitation
Roman law is the most important source for the study of the legal character of the “Monalekh” because it clearly states what the “Monalekh” means and what kind of legal relations it creates.
The Romans believed that if a river cut through its bed during a long flood, it became public property.[1] Public property was the common "property" of individuals, and they could proportionately benefit from this property.[2] The Romans distinguished a public good, a property over which the right of ownership can be extended, from a good that cannot be owned by its very nature.[3] Roman law considered things common to natural law as such - "air, running water, sea and, therefore, the seashore".[4] The latter is no one\u27s property; everyone can enjoy its bounty just like the sea.[5] Nor could the land and sand under the sea become an object of ownership.[6] However, as the river left its old bed, its bottom became the property of the owners of the land on the river bank.[7] As noted in the Institutions of Justinian, the owners of this contiguous plot would acquire the right "in proportion to the length of the bank belonging to each plot", and the newly cut bed would again be subject to public law.[8] Accordingly, if the river were to return to its previous bed, the previous legal regime would apply to the new, dry bed.
River flooding was especially beneficial in areas where agriculture depended entirely on irrigation. For example, in Egypt, the overflowing Nile overflowed its banks, enriching the soil with sediments in addition to water. That is why the Egyptians referred to their country as the "black land" - in Egyptian "Kemet".[9]
2. Types of precipitation
According to the institutions of Justinian and Gaius, the alluvium is the land that water has added to the land in the form of additional land in such a way[10] that the time of addition cannot be determined.[11] Roman law was in a way faced with the question of acquiring the right to increase ownership of land, regardless of whether the increase of land happened gradually or all at once. If a part of the land was torn away by the river at once and it was attached to the neighboring land, it would still be considered a constituent part of this plot.[12] This concerned the increase, not along the entire coast, but in separate places on the shore, also in the form of a cape.[13] According to the institutions of Gaius, according to natural law, the right of the owner of the land immediately extends to such an increase,[14] while the institutions of Justinian, at the same time, consider it important that the increase of land that has been cut off should remain as long as possible with the land of others, so that if trees were planted on the piece of land.[15]
Therefore, when a river bank is cut off by the flow of a river or other processes and added to someone\u27s land, the origin of the right of ownership over the cut-off part is determined by how it is added to another person\u27s land.[16] Here it is important how firmly the torn land was fixed where the river pushed it.[17] According to M. Bartoshek\u27s definition, avulsion, i.e., the ownership right to a piece of land cut off by the flow of a river arose only after the final connection,[18] for example, if the places of their connection were covered with common vegetation or, as already mentioned, the tree on the connected land took root in this soil as well.[19]
The plot to which the soil was added in the form of precipitation became a similar part of what was added.[20] In the sixth book of Justinian\u27s Digests, it is indicated that in a lawsuit related to a plot of land, if there was a demand for such land, this requirement was transferred to the additional land as well.[21] The main plot of land, together with the alluvial land, was considered as one whole plot.
Roman law discusses the river and the island in the sea. The formation of the island may have occurred by bringing land detached from elsewhere in the river bed or lowering the bed. An island formed in the middle of a river, according to Roman law, became the co-ownership of the owners of the adjacent land plots on both sides of the river.[22] If the island is not in the middle, but closer to some shore, then it belongs to the person who owns the coastal land,[23] and "if the river divides somewhere and then joins again below, making someone\u27s land an island, that land belongs to that person", to whom it belonged before.[24]
The owner of the land would also gain ownership of the things that the river washed onto his land,[25] for example, firewood and building materials. The rights of the neighbors of the coast on the rise of the rivers were determined by the law and did not require possession.[26]
Thus, the dry bed and the river island are considered to be independent land parcels, in contrast to alluvial and avulso, which are considered to be constituent parts of raised riparian parcels. Accordingly, different regimes of acquisition of ownership rights were in effect for these items. The same norms are applied on the coastline of the island as on the shore of terrestrial rivers.
3. Precipitation in ancient Georgian law3.1. First information about precipitation
In the sources of ancient Georgian law and ethnographic materials, there is almost no information about the river\u27s precipitation. However, the first reports about it can already be found in the works of foreign authors.
Strabo wrote that he had heard of gold mining in Svaneti: "It is said that the winter torrents bring gold, and the barbarians collect (gold) with pierced leaves and furred skins: hence the myth of the golden fleeced[27] ram."[28] He brings sand. The residents build shaggy sheepskins in the rivers and collect the sand that settles on them.”[29]
The author of the 2nd century, Gaius Plinius, noted that the successor of the golden verse would be found in the rivers of "Svaneti and the state in general".[30]
The extraction of gold in the springs was associated with the flooding caused by the melting of the glaciers of the Enguri River, which had significant property consequences for the population living in Svaneti, and especially for the ruling class.
3.2. Rules for acquiring ownership rights to sediment
Apart from the Vakhtang law book, none of the local monuments of the old Georgian law provide for legal norms regulating rainfall. Vakhtang law also discusses this issue within the framework of "water proteins", of which only one of the two constituent articles, Article 184, contains legal norms. The title of Article 185, "If a landslide were to tear you away", only reflects the desire of the judge to settle this issue legally, since no legal norms are included in this article at all. As I. Dolidze explains that no other manuscript of this law book contains its text.[31]
Sources of foreign law operating in Georgia, Georgian versions of Greek and Armenian law, fill this gap to a small extent. Here we note that the relevant norms of Greek law in the matter of precipitation are based on Roman law. Article 269 of the law "for the island of the sea and the river" includes several legal norms, for example, this version of the Greek law recognizes the right of occupation on the middle part of the island of the sea: "Whoever first catches an alag in that middle, that alag will be his and no one else has a hand."[32] It is noteworthy that the source does not say anything about other parts of the island, for example, the ownership of the coastline. We think that the issue of attribution of the island to "Shua Alagi" is completely inappropriate here because when the island was acquired,[33] with the right of occupation, the entire island became its appropriator.
One of the norms of Article 269 of the Georgian version of Greek law, like Justinian\u27s institutions, also discusses the peculiarity of the river flow, which consists in dividing the bed into two parts. Based on this, he establishes a rule for assigning the place allocated during the natural flow of water in the middle of the river: "For those who have villages across and across, they should divide the land between them" (269).[34] On the land of the middle belt of the river, its bordering villages, as independent legal entities, would acquire an equal share of ownership rights in the land. The basis for obtaining ownership rights is the location of the newly allocated land. Therefore, if the river covered this land with water again, the ownership rights of the villages would be terminated.
In the same article, the issue of obtaining the right is regulated in such a situation when the river flows from the bed of a village to the side of a village and because of this, the land is added to the bank of the other side. Greek law considers the new owner of such an increase to be the one to whose land a new plot of land has been added due to the change in the flow of water. The lawmaker explains that this right may be temporary, because "water has no faith, today it spilled over there, tomorrow it will spill over here."[35] This nature of water is also taken into account by Vakhtang law, although it expresses the opposite view when determining the right. The first norm of Article 184 of its law is formulated in this way: "It will be and is created, the river water will dump the old flow, sometimes it flows there and sometimes here, and it is avoided, it is our water and what is left to me is mine." But this will not change. When the mouth of this river has been built for generations, beyond or beyond, where there is no water at that time, and these villages are pressed to the mouth of that water, it must be held again."[36]
The content of the norm shows that Vakhtang ignores the new situation caused by the change of the water bed and protects the property rights of the owners of the adjacent plots of the river in the exact limits within which been held by them "for generations". In this case, two circumstances are the basis for the immutability of the border. The first reason is that these plots were inherited by the owners for a long time, and the legislator does not consider it appropriate to disrupt the border between them due to natural events, and, on the other hand, due to the frequent changes in the river bed, it was not in the interests of the judicial authorities to consider the dispute that arose every time.
It should be noted here that throwing water without permission was prohibited and entailed punishment. According to the Bichvinti Yadgar, whoever hunted the water of Bichvinti without asking the Catholicos "for profit", i.e. artificially changed the bed of the river, had to pay twenty thousand whites for the chair.[37]
4. Analogy of the law - property rights to minerals
In the introduction of the work, we mentioned that we consider it permissible to argue that the acquisition of ownership rights to precious metals and other things mixed with sedimentary soil should be applied by analogy to the law, and the legal norms that were defined for obtaining ownership rights to minerals should be applied.
The law of Mkhitar Ghosh designates the king, queen, and sometimes princes as the owner of "exposed" rocks or other substances in any place, city, or village.[38] Gold and pearls belong to the king, and silver to the queen. If these precious stones were found in the kingdom, the king could give a share to the prince at his will, or at least take it himself; Copper, tin, iron, salt, Sabi, borax, kerosene, and pitch belonged to the princes, "by great grace and honor from the sovereign," for which the princes had to express gratitude to the king.[39] This gratitude was probably expressed in giving a share to the king. The use and trade of sulfur, frankincense, Gunda, Jaoz and other such substances were allowed for everyone. It is also mentioned here that they can "yatistaon", that is, they can determine a tithe as a value during the trade.
Among these properties, the named pearl is found only in the sea or on the seashore. Unlike Roman law, according to which precious stones and pearls found on the seashore immediately became the property of the finder based on natural law,[40] under feudal law only the main owner of the country, the king, had the right to own them.
According to the judgments of Ioane Batonishvili, the mining of minerals should be carried out either by the king at his own expense or leased. The received ore, be it gold, silver, or copper, had to be divided in half, and the cost of the workers had to be borne by the tenant.[41]
Income from minerals was important for the rulers of individual kingdoms. One of the first requests of Solomon II to the Russian emperor was that the king should not be left without a share of all ore mined and processed in Imereti - be it gold, silver or any other.[42]
5. Influence of climate on precipitation
Other primary sources about the “Monalekh” (sand from sea or river) are hardly found, and this topic has not been studied by researchers of the history of law. Scattered reports in the literature about gold content in sedimentary sands of rivers of Western Georgia - Rion, Tekhura, and Tshniskali, as well as in Kvemo Kartli, in the beds of the Mashavera River, are insufficient to study the issue. Therefore, first of all, it is necessary to find out why legislators paid so little attention to the issue of land precipitation regulation and why customs of a corresponding nature were not developed in a country rich in rivers. In this regard, attention should also be paid to the following circumstances: the frequency of rainfall, volume and nature of rivers, and whether these environmental factors created the necessity, at least by customary law to fill the scarce legislative space on the river bank land.
It is established that torrential rains in the territory of Georgia, which are more local in nature, despite their short duration, caused considerable damage to the valleys of small rivers, for example, landslides often occurred in the territory of Tbilisi, as well as on the left banks of the Alazani River.[43] But the main importance of the flooding of large rivers was the long-term and large-area rainfall.[44] The area of flood-flood distribution depends on the duration of the rains, rather than the amount of precipitation falling in a short period.[45] Such floods and resulting torrents caused great damage to the banks of the river and emptied the soil, which was transported to another area in the form of debris. Western Georgia was particularly affected by such rains, because unlike Eastern Georgia.[46]
The study of the nature of mountain rivers, for example, in Tusheti, showed that floods were formed only at the expense of snowy and icy waters in Alazan of Tusheti and vice versa.[47] Even the precipitation of summer seasons does not cause a significant increase in runoff.[48] Precipitation is brought more to those rivers that have a sufficient slope of fall; Such are the watersheds located between Enguri, Khobisqali, Ochkhomura and Tekhura.[49] The granite stones were brought to Samegrelo by the strong stream of Enguri in the form of sediments.[50]
conclusion
The research showed that out of the monuments of national law, only the law of Vakhtang VI, and even partially, considered it necessary to make the legal regime of “Monalekh” (sand from sea or river) a subject of special regulation. It should be noted that monuments translated from abroad do not pay special attention to this issue either. We think that the source of the corresponding provision of the Vakhtang law should be the local customary law, which the punishing king used as the basis of his norm. Unlike the Roman law, which, in turn, is the source of the Georgian version of the Greek law, the ancient Georgian local law did not provide for the establishment of a right different from the previous one on adjacent plots due to the change of the river bed. As for the items brought out by the sediment, it is possible that the finds were spread over them.
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DICTIONARIES:
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Footnot
საქმე The Dead Sea Scrolls: ინტელექტუალური საკუთრების დავის თავისებურებანი საერთაშორისო კერძოსამართლებრივ ჭრილში
No full textThe case is known around the world as a drama steeped in mystery, international intrigue, professional jealousy, political tension, and conspiracy, which raised the issue of copyright in biblical manuscripts. This legal saga has sparked debate not only in the academic community studying the scrolls, but also among copyright lawyers around the world. The decision of the Supreme Court raises a fundamental question about the choice made of the rule of private international law in the context of copyright and moral rights. The issues to be discussed essentially related to academic freedom, access to unpublished sources, exchange of knowledge and information before publication, possibility of free use of material after publication. More than 2,000 years after it was written and half a century after its discovery, one of the Dead Sea Scrolls finally has a “legitimate” author, according to an Israeli court.
Keywords: Presumption of identity, Copyright, Moral rights
Introduction
The Dead Sea Scrolls are ancient Jewish manuscripts found in the Qumran Caves in the Judean Desert. They were first discovered in the 1950s in Qumran’s “Cave N4”, where 15,000 fragments of various scrolls were found.[1]
Nothing was known about the scrolls until their discovery in the mid-twentieth century. Thousands of fragments in East Jerusalem (then under Jordanian jurisdiction) were studied at the discretion of the Jordanians by a small international team of researchers who had exclusive access to the archaeological materials. The following year, during the Six-Day War, Israel captured East Jerusalem, and the museum came under their control and returned to its old Rockefeller name. Since 1967, the Israel Antiquities Authority has continued this policy of scroll research. The group was determined to keep the scrolls hidden until the official research results were released.[2]
Professor John Strugnell of Harvard University, the first researcher involved in tying the fragments into a single scroll, was appointed to lead the reconstruction of the scrolls.[3] After 2,000 years in a Judean cave, the scrolls required a careful and complex restoration process. The material contained over a hundred fragments of six copies of the scroll - some of the tiny pieces had less than one letter written. Strugnell managed to identify up to a hundred parts of the scroll and join them according to shape and form up to seventy separate fragments. After the physical reconstruction, about a third of the text was missing. The task of decoding required filling in the missing pieces with linguistic and halachic knowledge, which he did not possess.[4] In 1981, the head of the group hired researcher Elisha Qimron, a professor of Jewish language and philology at Ben-Gurion University in Beersheva. For the next 11 years, Qimron dedicated his work to this challenging task. He reconstructed a 121-line text from seventy fragments, with 40% of the content filling the gap. After completing most of the work, he called the scroll “The Laws of the Torah”.[5]
While working on the material, Qimron and Strugnell gave various researchers several copies of the draft text for comments. In 1991, after the decipherment was completed, an agreement was reached between Qimron, Strugnell, and the English Oxford Press to publish the deciphered text with photographs of scroll fragments and Qimron\u27s comments. However, the Polish scholar Kapera published it in The Qumran Chronicles without permission. As a result of the intervention of the Israel Antiquities Authority, further circulation was stopped, and the organization apologized.[6]
By the 1990s, less than 50 per cent of the scrolls had been published. The unpublished “Torah Laws” scroll was housed in the Rockefeller Museum in East Jerusalem, with photographs stored for safekeeping in various locations worldwide, including the Huntington Library in California. In 1991, the library announced that photocopies should be available to academic circles. For four decades, monopolized access to materials has angered scientists who have been denied access to archaeological treasures. Herschel Shanks, editor of the Review of Biblical Archeology[7] and a prominent opponent of monopoly access, published The Dead Sea Scrolls - Facsimile Edition, edited by Eisenman and Robinson. The edition contained photographs of hundreds of fragments of the scrolls; the book had a “publisher’s introduction” written by Shanks and several appendices, including one copy of the deciphered text, without Qimron\u27s permission or credit for his name.[8]
In January 1992, Qimron filed a lawsuit in the Jerusalem City Court, seeking an injunction against Shanks and the editors from publishing the book containing the deciphered scroll text and damages for copyright infringement.[9] He decided to apply an interim measure pending a final decision. In February 1992, an interlocutory judge’s decision prohibited the defendants from publishing or distributing the book in Israel or abroad. Before the temporary ban was applied, approximately 200-300 copies of the book were sold, mainly in the United States, with three copies sold in Israel.
In March 1993, the court ruled that Professor Qimron’s statutory copyright had been infringed and as requested, prohibited the book’s publication in this form. The defendants were ordered to pay the plaintiff NIS 100,000 (National currency of Israel - New Shekel): NIS 20,000 in statutory damages and NIS 80,000 in moral damages.* They were also ordered to pay the professor’s attorney fees of NIS 50,000. The court recognized, on the one hand, Qimron’s copyright on the deciphered text and, on the other hand, the violation of moral rights by publishing the text without mentioning the name.[10]
1. Presumption of Identity: Is Israeli Law Similar to American Law?
The court found that the offence occurred in the United States of America, however, the decision was made based on Israeli law because it used the presumption of identity (The presumption of identity of the laws) – “In the absence of contrary evidence, the law in a foreign jurisdiction is the same as the law of the court country”.[11] Applying foreign law is not a trivial matter. Israeli private international law, influenced by Anglo-American law, treats foreign legislation as a matter of fact and not as a matter of law. It is assumed that the local judge is unfamiliar with foreign law, so the parties confirm its content. When a foreign law remains unexplained (unproven) for some reason, the court resorts to the legal fiction that it is identical to local law.[12] Judge Dorner, presented with no evidence of US law, applied Israeli law based on the principle of equivalence of laws. He pointed out that using the presumption of identity was not a fiction because both laws (American and Jewish) originated in English law. Although Israeli copyright law was indeed based on the British Copyright Act of 1911 at the time, American law was not influenced by it for nearly 200 years.[13]
Jewish judges are generally familiar with foreign law, mainly English and American. They have access to libraries with rich foreign material and case law. Judge Dorner used three American cases in deciding the dispute.[14] He also cited the US copyright treatise Nimmer and the English copyright treatise Copinger. The examples cited demonstrated an additional source of knowledge for the judge rather than the application of foreign law.[15]
The defendants objected to the presumption of identity and the application of Israeli law in the case, arguing that Qimron did not establish the law of the place of the offence; “thus, it did not allege the facts forming the basis of the claim”. Shanks, the Society for Biblical Archeology and the editors appealed the decision. They pointed out that Qimron’s rights were not violated in Israel. Therefore, he had no cause of action under Israeli law, and there were no circumstances to apply Jewish law. According to them, deciphering the scroll was nothing more than a reconstruction of an existing work. The defense of the reconstruction of the text undermined scientific research by giving one person ownership of “part of the cultural heritage of the Jewish people”. Their publication of the text conformed to “scientific convention” and enjoyed protection as a publication made with Qimron’s implied consent. Qimron himself circulated the deciphered material among researchers. Therefore, publishing without mentioning his name did not violate his moral right. In the complaint, they claimed that they did not cause the material damage corresponding to the compensation claim, and they considered the amount charged for the lawyer’s services and moral damage excessive.[16]
The defendants clearly claimed the “monopoly” granted to an international group of researchers, which prevented many scholars from studying the scrolls. The book’s publication “made a great contribution to the study of the scrolls, and in this way alone ended the existing monopoly”.[17]
2. On the Anglo-American Copyright Law
All major English translations of the Bible, other than the authorized version, are copyrighted.[18] Some ancient Bible manuscripts used for translations are also copyrighted. Violating these rights leads to lawsuits against those who reproduce the Bible for Christian servants without the permission of the copyright holders. Naturally, a theological question arises: Should mortals who believe in the Bible as the Word of God have copyright over it?[19]
Some scholars worry that copyright extends to God’s Word. Others believe that this way, the Bible is protected from counterfeiting[20] and is a financial gainer that is used to translate, print, and subsidize it in third-world countries. As copyright is known to be related to property, should the Bible or its translation be subject to intellectual property, given its divine origin?[21]
The first copyright legislation in England was the Statute of Anne 1709, which provided that “the author shall have permission for fourteen years to print and reprint books”. In 1774, the House of Lords considered the famous case of Donaldson v. Beckett,[22] where the copyright on several poems had expired, and the publisher sought a publication ban. On the other hand, Donaldson, the copyist, argued that copyright could not be part of the common law because reproduction had never been an illegal act since time immemorial. He stated: “The law at common law must be based on the principles of morality and natural law. Copies of books have always existed, and copies have always been made. And yet, that one man alone should have had the exclusive privilege of reproducing copies has never been dictated by natural law in any age or country. Since antiquity, it has been the right of every individual to transcribe or copy a book; no author enjoys the possibility that they alone have the perpetual right to produce copies. Printing, a more rapid reproduction method, cannot change the principles of justice and injustice. After centuries of silence, common law cannot immediately declare this new type of right connected with property, no matter how much the authors may encourage it. Anne’s new copyright legislation is not a declaratory piece of common law; it was introduced to enable educated people to acquire property they did not have before”. Beckett, the publisher, argued that copyright was indeed part of the common law, as he believed it was fair for the author to receive a profit. He stated: “The claim of authors to the sole and exclusive right to print and publish their works is based on common sense and natural law principles. It is only fair and lawful that those who communicate their ideas to the public in written compositions should be remunerated. Authors retain the right to reproduce hard copies for profit from the publication of their work. There is an implied agreement that the buyer shall not infringe upon the reproduction copyright in selling a particular copy. In England, from the earliest days of introducing the art of printing, this peculiar property has been known by the name of copyright”.[23]
Not all countries recognize moral rights in copyright law. Nevertheless, copyright also includes moral rights, which provide the opportunity to receive royalties in case of infringement of the work. “One component of sophisticated copyright law is the recognition that, in addition to protecting property rights, copyright also applies to moral rights”.[24]
Modern copyright law provides for property and moral rights. Moral rights include:
The author’s right to be recognized as the author of the work;
The author’s right to prevent changes and protect their work from distortion or other interference.
The author’s right to withdraw the work and stop its publication;
The right not to be recognized as the author of someone else’s work.[25] While property rights are transferable, moral rights remain with the author.[26]
In 1789, copyright provisions were added to the US Constitution. US copyright doctrine has evolved freely from the influence of any theory. In 1884, the Supreme Court heard a case involving a contemplative pose of Oscar Wilde photographed by Napoleon Saron. During the discussion, the question arose of whether it is possible to qualify the photographer as an “author” under the Constitution. The court stated: “The author is the one who participated in the creation. An inventor, a producer, one who creates a scientific or literary work”.[27] It is hardly surprising that the Supreme Court recognized the beauty of Wilde’s Saronic portrait and ruled that it was the author’s work, not the device’s. This work was not a “conventional” example of photographic production. The court had to translate the camera’s inanimate labor into the artist’s creative expression. Thus, the question remained: Who created the artistic photograph: the photographer or the camera?[28] Could the photograph be copyrighted? The court noted: “The photographer gave a visible form to the posing of the mentioned Oscar Wilde in front of the camera by selecting and placing the costume, curtains, and various accessories. Arranging the subject to present graceful contours, distributing light and shadow, and sculpting the desired expression, as a result of such disposition and arrangement, he created a photograph. These findings demonstrate that the photograph is an original work of art, a product of the plaintiff’s intellectual creation, of which he is the author”.[29]
Two decades later, the Supreme Court debated whether a circus poster was copyrightable. Judge Holmes stated: “It would be a dangerous undertaking for persons qualified in the law alone to appreciate the narrowest and most extreme values of pictorial illustrations. Sometimes, works of genius are underappreciated. The novelty in them is unacceptable until the public learns the new language in which their author speaks. It is doubtful, for example, that paintings by Goya or Manet would have benefited from copyright protection after they were first seen. If the images are of any public interest, they have commercial, not aesthetic, educational value. The value of these pictures is explained by the desire to reproduce them”.[30]
3. Does Professor Qimron own the copyright?
Does Qimron have a copyright on the decrypted text? First, let us define the work he worked on for eleven years. We must distinguish two primary components of the deciphered scroll. One is the physical, tangible “raw material”, or fragments, created about 2,000 years ago and found at Qumran. The second component turned the collection of scroll fragments into a decipherable text by restoring, sequencing, and filling in the gaps. In other words, breathing life into the fragments makes them a meaningful and living text.[31]
According to Article 35 (1) of the Israeli Copyright Law, a “literary work” that may be subject to copyright includes, inter alia, compilations. According to this definition, “copyright may subsist in a unique edit or design” as long as it is considered “an original work because of the thought, labor, and skill embodied in it”.[32] Thus, a “literary work”, as the term is used in the Act, will benefit from copyright protection only if the work is original. The requirement of originality is somehow omitted in the official Jewish translation of the Act, although it is reproduced in the first section of the English Act: “Every original literary, dramatic, musical and artistic work”. According to the English norm, copyright protection is provided not for an abstract idea, but for a tangible expression of an idea. The work must come from its creator, the author, and not be copied from another work. Although the author has used already existing material, although it sufficiently reflects independent efforts and his own talent, the work will be subject to protection.[33]
4. The concept of originality in copyright law
The primary purpose of copyright law in the United States is to “promote the progress of science and art. This goal serves the motivation of authors to create scientific and artistic works”. Thus, a work that is “an original work of authorship is subject to protection in order to encourage more similar authorship in the future, which should ultimately bring about the desired progress in intellectual production”. Copyright protects “original works of authorship”, i.e. works created by those who claim protection.[34]
“Authorship” implies a necessary connection between the creator and the work. The work must originate from the author, with the minimum required quality. “It cannot be copied”. Authorship, originality, and protection cannot exist if the claimant acts as a mere conduit – when the work’s origin (verifiable facts or earlier text fragments) is only another source. Thus, protected works are “based on the creative abilities of the mind, are the fruit of intellectual labor, embodied in the form of books, prints, engravings and others”. The law expressly requires only a minimal dose of originality to maintain copyright protection: “It is sufficient if the author owns the work”.[35]
5. Decision of the Supreme Court
While the case was pending in the Supreme Court, Qimron published his work, and Shanks published a second edition of the book without the deciphered text.[36]
On August 30, 2000, a panel of the Supreme Court agreed with the lower Court’s decision, adding that Shanks had to give Qimron any copies of the book he still had in his possession. The Court ruled that Israeli law applied to the case. The decipherment contained enough originality and creativity to qualify for copyright. Thus, Professor Qimron was deemed to be the copyright holder. In its deliberations, the Court articulated some basic principles of copyright: compilations of raw material may be subject to copyright protection; An expression deserves protection, not an underlying idea; The claim of originality refers to the author and not to another source.[37]
The court considered the appellants’ claims that the application of public policy should have led to the denial of copyright to the deciphered text. Shanks and the editors argued that copyrighting the deciphered text would prevent other scholars from criticizing Qimron’s work and would generally prevent the public interest in scroll research. The court explained that Qimron’s copyright did not prevent anyone from studying, deciphering, arranging the fragments and filling in the gaps. Therefore, anyone could have done it using methods different from Qimron’s and benefited from copyright protection. It was a “multi-factor” equation that anyone could try to solve to fit different “definitions” into place.[38] The court ruled that Shanks had infringed Qimron’s copyright. He claimed that a Polish researcher published the deciphered text for the first time. According to the scholarly convention, once published, the author’s consent to allow further use of the text without obtaining his permission was implied.[39]
The Israeli Supreme Court did not clarify whether the presumption of identity was applied correctly. Moreover, it did not use the presumption and applied it directly to Israeli law because three copies of the publication were sold in Israel, and therefore, copyright infringement occurred in that country. In doing so, the Court confirmed Israel’s choice of private international law norms regarding copyright and moral rights issues.[40] How would the dispute be resolved if the Court applied US law? Does American law provide a precise answer? The answer to this question is the main principle of copyright law – the requirement of originality.[41]
Conclusion
The Supreme Court found that by sending three copies of a book published and ordered in the United States to Israel, the unauthorized publication of the consolidated text took place in Israel. Copyright requires that the author’s name be indicated on the work in the usual way.[42]
The author of the scroll is long dead. What did Qimron do? He restored the scroll, deciphered the text of the fragments, and filled in the gaps in them. Over the years, selfless work, impressive talent, and profound knowledge combined to decipher the text. Qimron did not claim to have written anything himself; he did not create the text himself or arrange the fragments randomly. He claimed to have restored the original text written at the time of the origin of Christianity. According to the court, studying the work with different phases reveals originality and creativity. Qimron’s work was not technical, “mechanical”, the result of simple labor.[43]
Bibliography
Birnhack, D. M. (2001). The Dead Sea Scrolls Case: Who is an Author, European Intellectual Property
Review Case Comment, Sweet and Maxwell Limited and Contributors.
COVID-19 – ის გავლენა ადამიანის უფლებებზე
No full textOn March 11, 2020, the World Health Organization declared a coronavirus pandemic. The economy stopped, the lives of billions of people changed. As a result of pandemic, a number of constitutional rights have been restricted. Restrictions imposed during the state of emergency affected public life and threatened the implementation of international human rights instruments at the national level. Number of States declared state of emergency to tackle with pandemic. Herewith, a few states refrained from doing so. The foregoing article reviews the impact of COVID-19 on the rights and freedoms protected by the European Convention on Human Rights, relevant state practice of derogating from obligations under the Convention, statistical data and the supervisory role of the European Court of Human Rights (ECtHR) against abuse of the derogation mechanism.
Keywords: Human Rights, Defence of Freedom, European Court.
Introduction
Since the end of 2019, the new coronavirus COVID-19 has spread globally. On January 30, 2020, the Secretary General of the World Health Organization announced the outbreak of the new coronavirus. On March 11, 2020, the World Health Organization declared a coronavirus pandemic. The economy stopped, the lives of billions of people changed. "We have no experience of a pandemic caused by the coronavirus, and there has not been a pandemic that could be controlled" - said the head of the World Health Organization, Tedros Adhanom Ghebreyesus.
The created situation led to the need to impose restrictions in various areas. As a result of the pandemic, a number of human rights guaranteed by the European Convention on Human Rights (European Convention) have been restricted.
As a highly infectious disease, COVID-19 required and requires special measures to stop the spread of the virus. Across the Council of Europe, ten states (Georgia, Estonia, Armenia, Romania, Moldova, Latvia, North Macedonia, Albania, Serbia and San Marino) declared a state of emergency and, in accordance with Article 15, made a decision to derogate from their obligations under the Convention (derogation). Restrictions imposed during the state of emergency affected public life and threatened the implementation of international human rights instruments at the national level.
Declaring a state of emergency and derogating from the rights guaranteed by the Convention: essential requirements established by the European Convention and case law
According to Article 15 of the European Convention, a High Contracting Party may derogate from its obligations under the Convention if it meets three conditions. First, derogation is permitted only "in time of war or other public emergency threatening the life of the nation." Second, deviation from obligations is allowed only "to the extent strictly required by the exigencies of the situation". Third, the derogation must be consistent with the State\u27s "other obligations under international law."
It is important to note that according to Article 15, paragraph 2 of the Convention, it is not allowed to derogate from some of the rights. The Convention does not allow for derogations from Articles 2 (right to life), 3 (prohibition of torture), 4 (prohibition of slavery and forced labour) and 7 (no punishment without law). In addition, each High Contracting Party making a derogation shall inform the Secretary General of the Council of Europe of the measures taken.
The European Court of Human Rights in the case Lawless v. United Kingdom defined "war or other emergency situation threatening the existence of the nation" as "a particular crisis or other emergency situation affecting the population and constituting a threat to the community of which the State is composed.”[1] A state of emergency must be based on an immediate and real danger.[2] However, the declaration of a state of emergency is legitimate when the usual restrictions provided for by the Convention are considered insufficient.[3] The Convention does not establish the terms and duration of declaring a state of emergency. However, the Court\u27s case law makes it clear that for the purposes of Article 15, a state of emergency can be extended for many years.
It is the job of the national government to decide the existence of a state of emergency, the nature and extent of the deviation. In this regard, Article 15 provides a wide scope of action.[4] However, states do not have unlimited powers. To determine whether the authorities have crossed the red line, the court considers the following factors:
Whether it was possible to deal with the danger caused by the emergency situation under the applicable law, bypassing the derogation provided for in Article 15;[5]
Whether the measures have been used for the purposes for which they were adopted;[6]
Whether the measures taken were proportionate and whether there were other alternative, lighter means of achieving the intended goal;[7]
What is the extent of the derogation from the obligations of the Convention;[8]
Whether the need for derogation was subject to periodic review;[9]
Whether there was a possibility of judicial control over such measures.[10]
As the court explained, "a state of emergency that threatens the nation" should not become an excuse for arbitrary interference with rights. Even during a state of emergency, any measure must serve to protect democratic order and values, human rights and freedoms.[11]
The cases considered by the court regarding the state of emergency so far were related to terrorist activities or armed conflict. Although the Court has not considered health-related issues in the context of the state of emergency, the aforementioned rules established by the Court\u27s case law are unconditionally relevant to restrictions caused by the pandemic.
The supervisory role of the European Court of Human Rights in case of abuse of the state of emergency by the authorities
The decision of the authorities to derogate from the obligations imposed by the Convention must meet the principle of good faith in order to exclude the danger of arbitrariness and abuse of the state of emergency. However, before the implementation of the adopted measures, the European Court cannot assess the legality of the implemented measure. The necessity and proportionality of the restrictive measures are assessed only after the relevant complaint reaches the European Court. This leads to long delays in responding to abuses of these measures.
One of the important safeguards established by Article 15 is the principle of notification. In particular, according to paragraph 3 of Article 15 of the Convention “Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.”
It should be noted that the convention does not provide for the deadline and form of notification. The Court\u27s case law does not contain an explicit requirement that such notice be given "immediately, without any delay". The obligation provided for in paragraph 3 of Article 15 is actually translated into the registration of the notification. Accordingly, the essential assessment of the restrictions during the state of emergency cannot take place until the applicant appeals it before the European Court. This indicates the formal nature of the state of emergency notifications.
Based on the above, there is a need to introduce new means of non-judicial supervision of the state of emergency or to strengthen the existing means. 4 years ago, the long-term derogation from the Convention by France, Ukraine and Turkey made clear to the Parliamentary Assembly of the Council of Europe (PACE) the necessity to use other mechanisms of the Council of Europe.
Accordingly, Council of Europe Parliamentary Assembly No. Resolution 2209 (2018) emphasized the authority of the Secretary-General, in the context of Article 52 of the Convention[12], to supervise existing derogations "through dialogue with the State concerned to ensure the compliance of the measures taken during the state of emergency with the principles established by the Convention."
Article 52 of the Convention obliges the States, upon the request of the Secretary General, to submit explanations of how the High Contracting Party ensures the effective implementation of the provisions of the Convention in national law.
The provisions of Article 52 were used six times. Finally, in 2005, the Secretary General requested clarifications from 47 member states regarding alleged violations of the European Convention on Human Rights related to the alleged presence of US Central Intelligence Agency (CIA) secret detention centers in Council of Europe member states. A special rapporteur was appointed to investigate the allegations. These reports established a high probability that CIA operational detention centers existed in Poland and Romania. As a result, the Parliamentary Assembly adopted several resolutions regarding this issue.
Article 52 was used only in three cases in relation to a specific participating state: in 1999, regarding the implementation of the provisions of the Convention by the Russian Federation in Chechnya; In connection with the suspension of the registration of a political party in the Republic of Moldova in 2002 for violating the rules on assembly and demonstrations; in 2015 to Azerbaijan. In the latest case, the Secretary-General requested clarifications regarding the implementation of the final decision of the European Court of Human Rights in the Ilgar Mammadov v. Azerbaijan case,[13] which concerned the illegal detention of a political opposition activist.
State Practice
Across the Council of Europe, many countries have declared a state of emergency to take unprecedented measures to tackle the COVID-19 pandemic. However, many states refrained from taking such a step. Ten states (Georgia, Estonia, Armenia, Romania, Moldova, Latvia, North Macedonia, Albania, Serbia and San Marino) used the option to derogate from the Convention due to the threat of the spread of COVID 19.
Derogation from the Convention affected a number of rights, including the right to freedom (Article 5), the right to a fair and public trial (Article 6); the right to privacy (Article 8), the right to participate in religious gatherings and the enforcement of religious rules (Article 9), Article 10 (freedom of expression), the right to assembly and demonstrations (Article 11), freedom of movement (Article 2 of Protocol 4).
As for the terms, all the states that used the right of derogation, submitted information about the declaration of the state of emergency and the measures taken within a few days. An exception is North Macedonia, which submitted such notification 2 weeks late. For reference, in Greece v. United Kingdom, the Commission emphasized that the three-month period between the declaration of a state of emergency and notification was unjustified.[14]
There are legitimate questions as to whether the notifications submitted include sufficient and reasonable grounds to demonstrate that the diversion was a necessary and proportionate measure given the dangers posed by the pandemic. Most of the messages are based on the World Health Organization\u27s declaration of March 11, 2020, stating that the measures taken are necessary to stop the spread of the virus, which may not be sufficient justification to justify a derogation.
Finally, taking into account that Articles 8, 9, 10, 11 of the Convention and Article 1 of Additional Protocol 1 do not constitute absolute rights, it is important to determine the extent to which it was necessary to depart from these Articles using the mechanism under Article 15. Obviously, the provisions of the above-mentioned convention provide for the possibility of interfering with protected rights if the criteria of legality, necessity and proportionality are met. Presumably, the court will, first of all, consider whether there are justified circumstances to interfere with these rights. If answered in the affirmative, the court may not even consider the legitimacy of derogating from Article 15. Thus, the court will continue to examine the reasonableness of the derogation unless the restrictive measures are justified by the above-mentioned 3-step test.
Limitations on Specific Rights
- Article 2 of the Convention (right to life)
The right to life is one of the fundamental rights protected by the Convention. According to Article 15 of the Convention, derogation from the obligations of Article 2 is not allowed.
Although the right to health is not a right protected by the European Convention, Articles 2 and 8 of the Convention impose a positive obligation on the High Contracting Parties to ensure the supervision of the health sector through the adoption of appropriate regulations.[15] Article 2 also covers a situation where it is established that the authorities of a contracting state endanger human life by refusing to provide health care, while they have undertaken the obligation to make health care available to the population.[16]
In two exceptional cases, the Court established state liability for the actions and omissions of the medical service provider: first, when the patient\u27s life was knowingly endangered by the refusal of emergency medical care;[17] Second, when due to systemic and structural deficiencies in medical facilities, a patient is deprived of the right to access emergency medical treatment, when the authorities knew or should have known about this risk and did nothing to eliminate it.[18]
Given the dire situation caused by the pandemic, which is affecting many people, it is essential that the authorities ensure effective enforcement of health regulations and equal access to medical services, especially for those who need emergency medical care.
- Article 5 of the Convention (right to liberty and security)
In the case of Enhorn v. Sweden,[19] the applicant, who was suffering from AIDS, indicated that he had been involuntarily hospitalized after having sexually transmitted the virus to another man.
In the decision made in the mentioned case, the court established the following important criteria to assess the legality of arresting persons "to prevent the spread of infectious diseases":
...whether the spread of infectious diseases is dangerous to the health and safety of the public, whether the arrest of an infected person is the last resort to prevent the spread of the disease, for the reason that less severe measures have been considered and regarded as insufficient to protect the public interest.
In the Einhorn case, the Court found a violation of Article 5 § 1 on the basis that the applicant\u27s forced isolation did not constitute an extreme measure to prevent him from spreading the AIDS virus, as less severe measures were not even considered. It is also significant that he stayed in the medical institution involuntarily for 1 year and 6 months. Therefore, the Swedish authorities have rightly failed to balance the prevention of the spread of the virus with the applicant\u27s right to liberty.
The quarantine regime, based on the objectives of Article 5 of the Convention, leads to the "deprivation of liberty" of many people. Such deprivation of liberty shall be in accordance with the practice of the European Court of Human Rights if the deprivation of liberty is in accordance with national procedural law; Imprisonment is limited in time; Imprisonment serves a legitimate purpose, namely the prevention of the spread of infectious diseases.
- Article 6 of the Convention (right to a fair trial)
Unless there are exceptional circumstances, the right to a public hearing is a right under Article 6 at least in one instance.[20]
As a result of pandemic, the publicity of the meetings is limited, in order to prevent the spread of the virus. Participants of the process, defendants, media representatives, in most cases, are involved in the discussion of cases remotely. In this case, the use of remote involvement would be justified if the rights of a defendant will be adequately protected.[21]
- Article 8 of the Convention (right to protection of private and family life)
Physical, psychological and moral inviolability is part of the right to privacy, one of the components of which is health care and medical treatment. Free and informed consent to medical treatment is one of the most important issues in the court case law.
The case of Glass v. United Kingdom concerned the performance of a medical procedure (taking diamorphine) on a disabled child by medical personnel without the mother\u27s consent. In this case, the issue before the court was whether the medical institution\u27s decision to perform a medical procedure without clear, free and informed consent was valid. The European Court found that the decision of the state authorities to ignore the applicant\u27s refusal to receive treatment violated Article 8 of the Convention.[22]
On April 8, 2021, the European Court issued one of its landmark judgments in the case of Vavrichka et al. v. Czech Republic concerning compulsory vaccination of children.[23]
In this case, the applicants complained that the imposition of fines on the parents of the child and the refusal to admit them to kindergarten for failure to comply with the legal obligation of compulsory vaccination violated Article 8 of the European Convention.
The applicants claimed that mandatory vaccinations unreasonably limited their right to autonomy in making decisions about their own health. The children\u27s parents pointed out that compulsory vaccination unjustifiably restricted the right to free development and the right of parents to ensure the upbringing of their children in accordance with their conscience, beliefs and opinions. In this regard, the applicants believed that the best interest of the child should be assessed first and foremost by the parents and that the intervention of the authorities should be allowed only in extreme cases.
The court explained that compulsory vaccination, as an involuntary medical intervention, represented an interference with the right to privacy.[24]
Regarding the legal obligation to vaccinate, the court explained that the purpose of the relevant legislation is to protect people from diseases that may pose a serious threat to health. This applies both to those who are subject to appropriate vaccinations and to those who have not received the vaccine and are vulnerable. This purpose is consistent with the purposes of protecting health and protecting the rights and freedoms of others.
States therefore have an obligation to act in the best interests of the child in all decisions affecting the child\u27s health and development. When it comes to immunization, the goal should be to protect the child from serious diseases. In most cases, this is achieved by compulsory vaccination of children. Those who cannot afford such treatment are indirectly protected from infectious diseases when they develop herd immunity.
Taking the above and other reasons into account, the European Court found that mandatory vaccination did not violate the right to privacy.
- Articles 9 and 11 of the Convention (right to religion and assembly)
The above rights are not absolute. The European Convention clearly allows interference with these rights under certain conditions. The burden of proof is on the respondent state, which must justify the reasonableness of the interference with these rights.
When assessing the proportionality of a specific measure, the court will take into account whether there is another alternative means or means of achieving the intended goal. The court will assess whether the restrictive measures are "adequate" and "sufficient." An important factor in assessing proportionality is also the existence of an effective system of control of the restrictive measures.
Several states have banned public gatherings to prevent the spread of the virus. These events include, among others, religious gatherings, political rallies, concerts, sporting events, and more. The imposition of such restrictions is highly likely to be a proportionate measure, as it aims to protect the health, rights and freedoms of others in a democratic society.
- Article 10 of the Convention (freedom of expression)
Media outlets play an important role in disseminating information related to Covid-19. At the same time, in order to prevent the spread of inaccurate information, some states were forced to take specific steps that limited freedom of expression and the right to spread information (for example, Armenia). This raises the question: whether the restrictions established in terms of freedom of expression meet the criteria of proportionality and necessity, as required by paragraph 2 of Article 10 of the Convention.
Undoubtedly, if such limitations are imposed, the court will apply a strict standard of assessment. Although some aspects of freedom of speech may be limited, the main core of this right must remain intact and must be protected. According to the Court\u27s assessment, even during a state of emergency, all government efforts should serve to protect democratic values and not limit them.[25]
- Article 2 of the 4th additional protocol of the Convention (freedom of movement)
As a result of the pandemic, many states have restricted movement. International travel has been restricted, including the entry of foreign nationals into the country.
In the context of the coronavirus pandemic, the contracting states of the Convention have significantly taken into account the interest of pro
აგრესიის საპასუხოდ ინტიმურ პარტნიორზე აუცილებელი მოგერიებით ძალადობის კრიმინალიზება. ცუდი კანონი თუ მანკიერი სისხლის სამართლის პრაქტიკა?
No full textThis article discusses self-defense in the context of domestic violence. In Georgian reality, the boundaries of self-defense are generally narrowly defined; however, when self-defensive violence occurs in the family when the aggressor is an intimate partner and the defender is a woman, the accused faces even more barriers to justice, which is determined by gender stereotypes and traditional views on domestic violence. There is a difficult situation regarding femicide in Georgia; in 2021, 22 women were killed just because they were women. Women are killed by their intimate partners, and the antecedents of the murder are similar. Women turn to the police for protection from violence, but to no avail. In such a horrifying reality, where the state, whose obligation it is, does not protect a woman from a violent partner, limiting the right to self-defense is another violation of the state’s obligation to protect life and physical integrity. A correct and bold interpretation of the right to self-defense by the court is necessary to weaken the aggressor on the one hand and to strengthen the defender on the other hand. In the Georgian reality, by trivializing domestic violence and leaving it in the personal space, more barriers are created for women to reach justice by being obliged to endure the aggression of a tyrant husband/partner. In the article, the author tries to show by observing a judicial practice that artificial barriers limit the right to defend oneself against the aggression of an intimate partner; a woman is punished for injuring the aggressor, while the law should justify her. Single acquittals cannot change systemic injustice, but the author’s goal is to show and analyze such significant decisions so that more people can learn about correct judicial interpretations. According to the author, discrimination based on gender is characteristic of Georgian justice; by identifying problems and critically analyzing court decisions, she tries to show the ways of legal regulation of the problem.
Keywords: Battered Woman, Self-defense, Family Tyrant
Introduction
The justification of necessary repulsion has been explained in many ways in philosophy or legal theory, including: consequentialism, double effect, and other doctrines.[1] This article supports the justification of repulsion on the grounds of human rights. A person has a right to life, freedom, dignity and other fundamental rights, therefore he has the right to protect himself from aggression. He has this right because he is a human being and no one can take this right away from him. Depriving a person of the necessary defense against aggression is like punishing a person for jumping out of the water and taking a breath of air. It is such a powerful instinct that dictates a person\u27s efforts to protect himself from aggression, which is aimed at maiming, destroying or humiliating him. The correct and consistent definition of the boundaries of necessary repulsion is important for legal security, the exact knowledge of the norm is absolutely necessary for both the repeller and the initiator of violence. The first person should know - with what force and intensity he has the right to act against the aggressor, to know - what he will and won’t be punished for, in order to be brave and confident during self-defense; and for the other, it is important, because he should know that the aggression caused by him hurts him, may even end in his death, and no one will be punished for it. The law tells the aggressor not to dare use massive or intense force because it may backfire. The law also warns the aggressor that justice is on the side of the repulsor, strengthens him and does not shy away from aggression and disorder.
This article discusses necessary repulsion in the context of domestic violence. In general, in Georgian reality, the boundaries of repulsion are narrowly defined, however, when self-defensive violence occurs in the family, when the aggressor is an intimate partner, and the repeller is a woman, the latter faces even more barriers to justice, which is determined by gender stereotypes and traditional views on domestic violence. In Georgia, there is a serious situation in terms of femicide,[2] women are killed by their intimate partners, the stories before the murder are similar to each other. Women turn to the police for protection from violence, but to no avail. Also, there are many cases when a woman dies with the staff weapon of her partner, that is, the aggressor is a police officer, which led to the ineffectiveness of the system to protect the woman from the aggressor.[3]
In such a horrifying reality, where a woman is not protected from a violent partner by the state, whose obligation it is, limiting the right to repel is another violation of the state\u27s obligation to protect life and physical integrity. In this reality, a correct and bold interpretation of the right of rejection by the court is necessary, on the one hand, to weaken the aggressor and on the other hand, to strengthen the repeller.
In the Georgian reality, by trivializing domestic violence and leaving it in the personal space, women (by being obliged to tolerate the aggression of a tyrant husband/partner) face more barriers in order to reach justice. Academic texts also strengthened the roots of everything. According to the old German doctrine, a woman\u27s right to repulse was limited according to the so-called socio-ethical norms, if the aggressor was a family member. In this approach, the woman had to accept the violence or leave the house.[4] Today, this position is criticized in the German as well as in the Georgian doctrines,[5] but it seems that it still appears in the Georgian consciousness, among practicing lawyers.
The cases discussed in this article describe the reality that Georgian criminal justice, with a narrow definition of necessary repulsion, makes the initiators of violence stronger than the aggressors. The article discusses the defensive cases of the female partner in response to aggression committed in the context of domestic violence. A case where a woman was acquitted of causing serious health damage to her partner, but the prosecutor appealed to the cassation instance to punish her. In another case, a woman, who killed her partner with an ax before trying to rape her, was sentenced. Analyzing the case, it seems as if sexual violence is an insignificant act for the court, the law does not justify the use of mass force against it, which is not correct. The article will provide an analysis and critique of the cases to rethink the boundaries of necessary repulsion, which is in the interest of every citizen.
1. Is stabbing the aggressor in the back unequivocally revenge violence, or is there context?
The general court answered this question by analyzing the context and justified the action of the female defendant, who wounded the aggressor partner in the ring area from behind. This chapter will deal with the vicious practice of how the prosecution distorts the boundaries of the right of repulsion. The case is a good precedent in terms of the court\u27s important clarifications, which will be useful to the defense in other cases, especially since this case was considered by the Supreme Court of Georgia.
1.1. Factual Circumstances
N.G. (repulsor) lived in a rented house with a male partner (K.S.) and children who had another father. On New Year\u27s Day, the children wanted to talk to their father, NG fulfilled their request and called her ex-husband. This annoyed K.S. In order to punish him, he put his hands around NG\u27s throat and choked him. The woman was gurgling and was so sick, her heart was beating. He managed to scratch the face of the abuser and thus freed himself in the first episode, but he was again caught by the aggressor, did not let him escape from the room, threw him on the bed and began to strangle him more brutally. At that time, the woman gathered her strength and asked the children to call the neighbor for help. The neighbor lived in the same house, in another room. She ran into the room and avoided the aggressor from the woman. During this period, the woman called 112, but the police was late. Soon the neighbor went to sleep in his room. After K.S. found N.G. in the kitchen left alone, he entered her again with threats and curses, his hands were directed to her throat to strangle her again, threatening to kill her. The woman pushed him, causing the aggressor to stumble and half turn away from her. At that moment, the woman grabbed a knife and hit the aggressor, fearing that when he regained his balance, he would attack with more aggression and would not be able to defend himself because he was all alone.
The prosecutor charged N.G. with articles 111, 117 (deliberate serious injury to the health of a family member) and fought to support the charge before the cassation instance,[6] he was not satisfied with the court\u27s arguments regarding the justification of the action by necessary repulsion.
However, the proven facts so clearly point to the condition of necessary repulsion and the use of commensurate force by the repeller, it is surprising how there is room for different evaluations. Even if N.G.\u27s action, stabbing him in the back, caused K.S.\u27s death, it should still be justified, because killing is justified in order to stop the aggression of the growing danger to life and health. If N.G.\u27s aggressor had been wounded in the first episode, it would have been justified. The law does not require running away from a righteous person, using a risky means for self-defense. Thus, the court correctly assessed the situation, it emphasized the momentary nature of the danger, that although the aggressor was hit by a knife in the position of turning away from the repeller, the turning did not necessarily mean that the danger was neutralized, he only tripped, which temporarily prevented the aggression. The judge also emphasized the fact that N.G., due to his physical capabilities, could not defend himself without a knife and assessed his defensive strength proportionately. The action was also motivated by self-defense, not revenge.
In connection with this case, one more circumstance should be emphasized. K.S. was suffocated by N.G., and suffocation is a cruel form of punishment and control of a female partner, which is often used by domestically violent men.[7] The prosecutors of this and other cases assess suffocation with an inappropriately light standard, under Article 1261 or 126 of the Criminal Code, i.e., as violence,[8] while suffocation is a life-threatening act and is assessed either under Article 117 (serious injury to health) or, when it is committed as a punishment, as in the discussed case, it should be considered as torture (Art. 1441). If the intention is established, it is possible to assess it as an attempted murder (Art. 19, 109). The over-aggressive and dangerous act of an intimate partner is judged disproportionately lightly, and the defensive violence of the victim of this violence against the aggressor, disproportionately harshly, when it is clear that it did not go beyond the limits of justification. All of the above points to discriminatory justice and it needs to be changed.
2. Is murder justified by necessary repulsion in defense of rape?
This chapter deals with the second case from the case law, where a repulsor was sentenced for the murder of an intimate partner committed in order to protect himself from rape. Critical analysis turns to the narrow judicial definition of necessary repulsion.
2.1. Factual Circumstances
In the decision of the Rustavi City Court, we read: “[The aggressor] while drinking alcohol, systematically, including, verbally and physically, abused his wife, while drinking alcohol. Threatened to kill both her and her children. Performed various sexually violent acts [towards wife] (forced her to have sexual intercourse with him [...] including in the presence of minor children); in 2016 on the night of December [...], while trying to carry out another similar action, a person in a state of strong spiritual excitement - physiological affect [repulsor] intentionally killed her husband [aggressor] by hitting him in the face several times with an ax”.[9]
The court punished the accused for this act for murder committed in a state of strong spiritual excitement (Article 111). Necessary repulsion or killing beyond the scope of repulsion was not even discussed.
According to the described facts, the husband systematically abused his wife and children. He committed sexual violence against his wife, without her consent, and also used threats and violence to establish sexual relations, and this happened constantly. According to the court, during one of the following violent episodes, i.e. when the aggressor tried to rape his wife again, the latter stabbed the ax several times in the face of the abusive husband and killed him. The decision says nothing about the swinging power of the axe, nor about which blow was fatal. The court does not judge whether one blow was enough to neutralize the aggressor, also, it does not explain how many blows are "several times" - two, three or more? In the absence of answers to these questions, the doubt should be resolved in favor of the accused. It turns out that the repeller needed to swing the ax several times to neutralize the aggressor, she could not hit hard due to physical characteristics, the aggressor did not stop with the first swing of the ax, and time did not work in favor of the repeller.
The factual circumstances considered proven in the case indicate that the wife was a victim of systematic violence and was in a state of necessary repulsion during the killing of the aggressor, at which time she killed the aggressor. All the necessary objective and subjective signs for the justification of the murder are present, nevertheless, the repulsor was punished for the murder of the abusive husband. If there were questions regarding the scope of repulsion, it was necessary to consider it and evaluate the action under Article 113 of the Criminal Code, although the court did not allow the situation of repulsion at all. There was no procedural barrier for judging her to justify the repulsive action, as this assessment did not aggravate the situation of the accused. In the case, it is obvious that the woman was not beyond the scope of repulsion. She was physically weaker than the abuser, always lost in the fight with him and always succumbed to the violence. Under such circumstances, what guarantee could she have that one blow of the ax, not to the face, but to another part of the body, would be enough to neutralize the danger? The law does not require us to take unreasonable risks to trust an abuser. Also, we don\u27t know the positions of the aggressor and the repeller, maybe she had to hit him in the face, because that was the only thing possible for her. In addition, it should be noted that initially the case was qualified by Article 108 of the Criminal Code and it was changed by the prosecutor only because the psychiatric-psychological examination report of the court was added to the case, which confirmed that at the time of the act the accused was in a state of physiological affect, “during which she could not fully control own action”. It turns out that, in the absence of such a conclusion, the repeller would be severely punished for an action that was within her right. To reframe the case where the wife killed her husband after violence, however soon, in such a situation it would have been correct to apply Article 111 of the Criminal Code, but in this case the danger, which the repeller used force to neutralize, was ongoing.
Article 28 of the Criminal Code defines the essence of necessary repulsion, it does not list by name what legal interest can be protected by defensive actions, although it is written in the law that it also applies to property rights, from which logically follows the consideration of other, more important goods under its umbrella. According to the definition of Article 28, the ratio of benefits, as well as the ratio of damages, is not necessary for the justification of repulsion,[10] in such a case the legislator would use the reference, as it is preserved in other similar norms, e.g. extreme necessity (Art. 30).
It is debatable as to which interest protection motive will be used to limit the killing of the aggressor. In relation to the protection of property, the justification of murder is controversial, although in Georgian academic texts, its justification is accepted with some reservations, e.g. referring to the vital importance of property and others.[11] As for freedom (e.g. during illegal deprivation of liberty),[12] sexual autonomy (during rape),[13] life, health, dignity (e.g. during torture), the killing of the aggressor is justified (if other conditions for the justification of repulsion are met). Necessary repulsion cannot justify the action, if in order to protect the legal good, the repeller interfered with a greater good than what was protected. It should be emphasized here that what the attacker tried to damage should be insignificant. As an example of this, the killing of a person for stealing an apple is sometimes cited in academic texts, such killing is not justified.
Killing the aggressor in defense against rape is justified in Georgian academic texts, no dissenting opinion was found in this regard. Rape violates a person\u27s sexual freedom and dignity. Rape is a serious crime, it is the cruelest form of humiliating a person, so it is logical and very correct for the victim to have the right to kill the aggressor in self-defense, if the rape could not be avoided by other lighter means or it was risky. The justification for killing in defense of rape is also supported in foreign language academic texts and case law.[14]
Georgian criminal justice does not seem to share this opinion. Why? Does it consider women\u27s sexual freedom as an insignificant legal interest? Or does it consider rape to be an insignificant act? Maybe it\u27s because justice gives a husband a latent immunity for raping his wife? Such approaches should be unacceptable for a lawyer.
For the purposes of this article, it is important to note that in one homicide case where the victim was a transgender woman, the assailant\u27s actions were justified by the first and second instance courts with necessary repulsion, even though the multiple wounds on the victim\u27s body, the analysis of the context of the situation and the testimony of the witnesses, indicated the opposite of the testimony of the accused and there was no doubt to share the accused\u27s version.[15] The Supreme Court of Georgia ultimately reversed the qualification by pointing to the very compelling evidence why the rebuttal version had not to be shared.[16] In the case referred to by the lower courts, the inappropriately broad definition of the right to repel and defining the essence of it in contrary, when in other cases, where self-defense is clear, but narrowly defined and punishing the accused,[17] must be explained by gender discrimination.
Conclusion
In Georgian judicial practice, there is a noticeable tendency to narrow the boundaries of necessary repulsion, this is done either by referring to the frivolity of the legal good protected by repulsion or by referring to the excess of the force used. Neither from the reading of Article 28 of the Criminal Code nor from the doctrinal interpretation, does it follow the requirement to narrow the boundaries of necessary repulsion on this basis. Necessary repulsion may be excluded if the good to be secured is insignificant compared to the good to be harmed, as in the relation between stealing an apple and murder. This article discussed the case of killing the aggressor while defending against rape. Human sexual freedom and dignity are protected from rape, trivialization of these values is not allowed, their protection, even by killing the aggressor, is allowed.
The article also discussed another case in which the repulsor was acquitted, but the arguments that the prosecution had and based on which it supported the trial for murder, its critical analysis was also important. During repulsion, it is possible that the aggressor will be hit by a defensive force from the back, which, a priori, does not exclude the situation of repulsion. It is important to analyze the context and show that the aggression was not over yet, which was evident in the case discussed in the article. The court saw this and acquitted the accused. Tendencies to narrowly define the norm of necessary repulsion in prosecutorial or judicial approaches when it occurs in the context of domestic violence indicate discriminatory approaches, which are not only indicated by these two cases, but also by many other studies. A fragmentary light, such as the decision of the Tbilisi City Court, which acquitted the woman, is not enough to change the vicious reality. More effort from the judges is important.
Bibliography
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Fabricant, J. (1981). Homicide in Response to A Threat of Rape: A Theoretical Examination of the Rule of Justification, 11 Golden Gate U. L. Review, vol. 11/iss.3/7.
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Gamkrelidze, O. (2002). Offence Against the Person, Tbilisi: Institute of State and Law of the Georgian Academy of Sciences,
Gegelia, T. (2021). Non-Fatal Strangulation in the Context of Family Violence, Caucasus University Periodical Edition, Colle