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ადმინისტრაციული ხელშეკრულების ცნებაში საჯარო უფლებამოსილების ლოგიკის დასუსტება კონკურენციული ლოგიკის არსებობით
Get PDFPublic activity has undergone a transformation and the integrity of administrative contract law can no longer be based on the traditional notion of administrative contract. The legal regime of the administrative contract was developed to justify the application of norms different from private law. This connection between the notion of an administrative contract and its specific legal regime explains that questioning the traditional notion of an administrative contract has implications for defining the general theory of administrative contracts. The question arises as to whether we can define the general theory of contracts concluded by administrative bodies. In the classical notion, the specific regime of administrative contracts is based on the logic of public service. The current legal regime of administrative contracts is based on various grounds. Public service, as the main element of the general theory of administrative contracts, today is competed by different logics that have different purposes: it is contractual logic and competitive logic. The first seeks to make an administrative contract similar to a civil contract. The second goes further: he is not interested in the possible specifics of the legal regime of administrative contracts. Previously, the selection of a contractor on a competitive basis did not meet the competitive logic, it was intended to spend public money correctly. Today, competitive logic is integrated into the top of the hierarchy of norms. This particular service logic retreats in the face of competitive principles
The jury – A comparative legal analysis of Georgian and Irish legislation
Get PDFThe jury is critical to the establishment of democratic government across the world. Community engagement in the legal system is one of the most successful and intriguing strategies that has been in use for many years in many nations throughout the world. Despite the favorable aspects, there are a few little details that might be problematic. The papers focus is on the jury systems in Georgia and Ireland. Ireland and Georgia belong to distinct legal families; in specifically, Georgia is a civil law country with a codified legal system, whilst Ireland is a common law country with a case-law-based legal system; this makes for an intriguing comparative legal analysis. The study examines the historical origins of the jury trial across the world; the historical backdrop of the establishment of a jury trial in Georgia and Ireland; and the historical background of the establishment of a jury trial in Georgia and Ireland. The focus was on the defining elements of the two-state approach, after which ecommendations were produced to strengthen both states\u27 regulation; also, the attention was on the deficiencies of the institute of jurors, which is still an issue today. The authors position was developed to resolve issues and enhance the system. Systematic, analytical, comparative legal, historical, and logical methodologies were used to conduct the research. The purpose of this study is to analyze theoretical and practical materials to emphasize the importance of the jury in both Ireland and Georgia.
Keywords: Court of Jurors, Judge, Verdict, Georgia, Ireland
Introduction
A juror is a chosen person who is responsible for our property, our dignity, our life, and our soul. in a word, he is responsible for our humanity. He is the face of the whole nation.[1] The jury trial is today one of the most common and effective models of litigation in common court countries. The paper will review exactly that jury trial. The main purpose of this paper is to discuss the legislative regulations of Georgia and Ireland in a comparative legal context, which regulates the stages of the jury process. For the purposes of this paper, only problematic issues that are regulated differently in the named states will be discussed. After discussing the problematic concepts, possible perspectives for solving them will be suggested. Before achieving the main goal, the general history of the origin of jurors will be reviewed and their role in the formation of a democratic and humane society will be analyzed; In the context of the paper, we review the practice of the European Court of Human Rights, which will make the review process more interesting and diverse; The paper will also discuss the case law of the developed world, with a special focus on American case law, which is relevant and necessary in the process of argumentation and reasoning; At the end, the position of the author in the context of the discussed topic will be proposed as a conclusion.
1.The origins of the jury trial
1.1 The first jury trial model in the world
Jurors have long been involved in the administration of justice. The Institute of Jurors got its start in England. "The jury is the beauty of English law," said Sir William Blackstone, a famous scholar of English law, and "it is a great dividing line between the power of the monarch and the freedom of the people."[2] Nonetheless, most experts agree that England was the jury\u27s birthplace since it was here, in the 11th century, that the jury was formed in its classical form.
A regulation was enacted in Norman-conquered England in 1066 that required everyone to swear the truth (the word "jury" comes from the Latin word "jurare", which means oath). Initially, in England, jury members were responsible not only for their functions as judges, but also for being informers, witnesses, and in some cases prosecutors.[3]
The Magna Carta Libertatum was issued in England in 1215, during the reign of John Landless, and had a significant impact on English constitutional law.[4] The Great Charter of Liberty declared that every noble, if free man, should be judged on an equal basis, legitimately and proportionately, which clearly had a significant influence in the continued development of the institute of jurors.
Twelve jurors refused to acknowledge William Penn and William Mede as conspirators in 1640. The jurors were punished and imprisoned for two nights without food or drink. In a landmark ruling, the Lord Chief Justice (Sir John Vaughan) decided that no jury can be penalised for its conclusion. The Bushell case is one of the most well-known and significant rulings in the field of jurors.[5]
The jury, influenced by England, first extended to the English colonies, then to the countries of continental Europe in the nineteenth century.[6] Scholars explain the spread of English law in other nations to a variety of factors and events.[7] The British Empire had a significant effect on the establishment of juror institutes in a number of nations. The Institute of Jurors was established throughout the British Empire\u27s colonies under the influence of the British Empire.[8] For example, the establishment of jurors in Virginia (1606), Massachusetts (1628), and New York (1664) was the first instance of the institution of a jury in British colonial areas. The institute of jurors was abolished in certain situations, such as India and Pakistan, as soon as they obtained independence from the empire.[9]
1.2 The history of juries in Georgia
The Statute of the Judiciary of September 21, 1917 was the first piece of legislation to mention the Institute of Jurors. Only on January 17, 1919, when Parliament enacted a laconic statute on the "introduction of a jury trial," did the so-called law take effect. It mandates that the Ministry of Justice establish a list of potential jurors.[10] By June 1, 1919, the Ministry was supposed to be finished with its project. The formation of the Senate in July 1919 marked a significant milestone in judicial reform.[11] The Senate\u27s role was to monitor the law\u27s implementation. Several trials have already taken place as a result of the new law. The 11th Red Army captured Georgia\u27s capital on February 25, 1921, ending three years of Menshevik control. The constitution was overturned by the army, and the jury trial, like many other aspects of Georgia\u27s judicial system, went down in history.[12]
In Georgia, the jury trial was reintroduced in two stages for the second time. In the first phase, an amendment to Georgia\u27s Constitution was enacted in 2004, establishing a jury court, though its implementation was delayed until relevant legislation was passed; in the second phase, a new Criminal Procedure Code was enacted in 2010, clarifying the rules for the use of the judicial institution. Lawyers, attorneys, and judges were being taught in regard to the new institution at the time of its establishment. Finally, in Georgia, a jury court has only been in operation in criminal trials since 2010.
1.3 The history of jury trials in Ireland
The history of jury trials in Ireland is similar to that of England and Wales. Beginning with the Anglo-Norman invasion in 1169, the English common law tradition progressively displaced the native custom-based Breton law system, and by the end of the seventeenth century, the common law tradition had been firmly entrenched throughout the nation.[13] In Ireland, jury trials have frequently had to work in a tumultuous culture. The jury system was put to a lot of pressure throughout the eighteenth and nineteenth centuries, when there was a lot of bloodshed and sectarian tensions. Intimidation of both jurors and witnesses, antagonism toward the state, intimate communal links between jurors and accused, and juror sympathy with accused all contributed to major difficulty in achieving convictions at different times and in different regions of the country. That is why Evidence shows that conviction rates in Ireland were lower than in England and Wales for all types of crimes in the second part of the nineteenth century.[14] As a result of these issues, prosecutors used a variety of strategies to guarantee that defendants were found guilty. One method was to try offenses without a jury as often as possible, for example, by extending the authority of summary courts and using non-jury trials.
Where a jury trial could not be avoided, the Crown used a number of more subtle measures to guarantee that criminals were punished. The use of the Crown\u27s right to ask potential jurors to stand-by, the shifting of cases to various sites to avoid local biases, the appointment of "special jurors," and the lessening of charges to get defendants to plead guilty were all examples of such techniques.
When the Juries (Ireland) Act 1871 went into effect in 1873, these types of issues were considerably lessened. This Act established an alphabetical rotation system for jury duty, which greatly limited the sheriff\u27s authority in appointing the jury.
When discussing the Irish Jury, it\u27s important to remember the 1976 Juries Act, which was vital for the country. The jury trial in Ireland was fully fixed and controlled on the basis of this legislation, which assumed the most flawless shape imaginable. It\u27s worth noting that Prior to the Act\u27s implementation, jury service was only available to residents who met specified property requirements. Women were exempt from jury duty, but not disqualified on the basis of their gender, as is sometimes assumed.[15] In de Burca v Attorney-General, the legitimacy of these agreements was successfully challenged. The property criterion was found to be unlawful by all five members of the court. Two of the judges concluded that it amounted to invidious discrimination and thereby breached Art.40.1\u27s equality requirement. Two others held that it resulted in a lack of representativeness that went so far as to violate the right to a fair trial protected by Art.38.1. The fifth member agreed without offering an explanation. The effective exclusion of women was declared to be illegal by four members, partially due to inequity and partly due to a lack of representativeness.
This statement represents the earliest distinction between old Irish legislation and the Georgian model. In Georgia, there were no property restrictions while choosing a jury. Women were allowed to take part in the jury trial without restriction. Unfortunately, Georgia lost its independence after the Russian army invaded, delaying the development of a number of processes in the country.[16]
2.Specific characteristics of a jury trial in Ireland and Georgia
2.1 Redistribution of work among judges and jurors
We should concentrate on the component of work redistribution between judges and jurors after analyzing the historical context. Following an analysis of the legislative histories of Ireland and Georgia, we can conclude that the two countries have a similar standard in this area, with no notable differences. The judge acts as an umpire or referee, while the jury is the entity in charge of making all factual determinations. Georgia and Ireland the parties set the boundaries of the dispute under an adversarial system, and the decision must be determined based on the evidence and motions offered by the parties throughout the trial. As a result, the judge is responsible for ensuring procedural propriety and fairness between the parties, while the jury is responsible for arriving at a decision in the form of a judgment. All contested evidentiary admissibility problems are decided by the court. Once evidence has been allowed, the jury must decide how much weight to give it. If it is alleged that evidence was collected in violation of the accused\u27s constitutional rights, the judge must consider, in a trial within a trial, whether the evidence was obtained in violation of the accused\u27s constitutional rights and whether it should be included or excluded under the law. It has been stated that judges are more qualified to decide factual concerns such as those coming from identification evidence and expert testimony, but juries are better suited to decide credibility issues.[17]
2.2 the group of people who can serve as jurors
The 1976 Act abolished all forms of discrimination based on race, religion, or gender, and merely stated that, subject to certain exclusions, any citizen who is at least 18 years old, under the age of 65 and is listed on the Dáil electors\u27 register is qualified to serve on a jury.[18] The Juries Act 1976 defines the circle of persons who cannot be jurors.[19] [20]
Interesting case law has been observed in Ireland. For the first time in November 2010, the High Court determined that a deaf individual can serve on a jury. Despite requiring the assistance of a sign language translator, the severely deaf man was allowed to serve on a jury. In the past, there has been a concern regarding a sign language interpreter serving as an extra juror in the jury chamber. Arguments were made that this would jeopardize the jury room\u27s confidentially. The High Court stated that concern about the 13th juror might be addressed by the sign language interpreter swearing a non-disclosure oath, with the jury\u27s foreperson guaranteeing that the interpreter is limited to interpreting what was said. [21]
In the Independent Republic of Georgia, like in Ireland, a candidate over the age of 18 is elected from the electoral list, who has not yet reached the age of 65. Articles 29 and 30 of the Criminal Procedure Code of Georgia define the circle of persons who cannot be a juror.[22]
Georgian law does not allow a deaf person to be a juror. It would be advantageous for the Georgian legislation to share the Irish approach.[23]
There is an opinion that the pool of potential jurors should, without a doubt, be as large as possible. Following the Auld Report\u27s recommendations, English legislation has recently been altered to allow nearly anybody to serve on juries, including police officers and attorneys. The Court of Appeal dismissed three appeals against conviction in R. v Abdroikov. A police officer was on the panel in two instances, while a Crown Prosecution Service counsel was on the jury in the third.[24]
It should be noted that such an expansion of the jury circle will not be result-oriented. A police officer working for a government agency may be biased. The same is true of a lawyer who is an insightful person in the field. Therefore, the existence of this kind of regulation should not be considered justified.
2.3 the number of jury members
A jury is made up of 12 people who are at least 18 years old and whose names are on the voter list. It is not established what caused the election of specifically 12 jurors. When the United States Supreme Court looked into the subject in 1970, they could only come to the conclusion that the number was set primarily by chance.[25]
In Ireland the Juries Act of 1976 stipulates a 12-member jury in Ireland, while the Constitution makes no such provision beyond requiring a jury trial. The constitutional requirement "is not a guarantee that juries must always consist of twelve individuals, neither more nor less, or that the decision must be unanimous," according to Walsh J. in De Burca v Attorney-General[26]. If a juror dies or is released by the court during a trial for sickness or another valid reason, the jury is presumed to be properly formed unless the judge instructs otherwise, or the number of jurors falls below 10.[27]
According to Article 27 of the Criminal Procedure Code of Georgia: A jury shall be composed of 12 jurors and 2 substitute jurors, except for cases specified in this Code. A jury shall be composed of at least six jurors for cases of less serious crimes; - of at least eight jurors, for cases of serious crimes; - and of at least ten, for cases of particularly serious crimes.[28]
Unlike Ireland, the Criminal Code of Georgia sets a different threshold for the number of jurors for crimes of varying severity. Every category of crime has a different complexity, so it is not justified to approach all categories of crime with the same standard. Therefore, it would be better for the Irish legislature to consider the Georgian model.
2.4 Disqualified Jurors
In the case of Ireland if a person has been convicted of a major crime in Ireland, has served a previous term of 5 years or more in prison, has served three months in jail in the preceding 10 years, or is residing in Ireland but is not an Irish citizen, they are normally disqualified to serve on a jury in Ireland.[29]
According to Article 30 of the Criminal Code of Georgia, a Human being has no right to be a juror unless the person is a citizen of Georgia; If they are a person, on whom an administrative penalty has been imposed for abusing narcotic drugs in small quantities, and less than one year has passed since the moment when the administrative penalty was imposed on them and if a person has been convicted.[30]
It should be noted that the record according to which a person sentenced to three months imprisonment for the last ten years does not have the right to be on a jury is too harsh. The Georgian model should also be critically evaluated, which deprives anyone who has ever been convicted of the opportunity to be on a jury. Such a strict restriction is not justified in the case of either Georgia or Ireland. A much more liberal attitude would be relevant and result oriented, because it is absurd to deprive someone of their right to serve on a jury for such a small offense.
2.5 the avoidance of jury candidates
In the case of Georgia, if the charge is punishable by life imprisonment, each party is entitled to file 10 unsubstantiated evictions. In other cases, the parties have the right to avoid 6.[31]
Like Georgia and Northern Ireland, but unlike England and Wales, in the Republic of Ireland both the defense and the prosecution have the right to question up to seven jurors without cause. Each defendant has the right to challenge seven prospective jurors without reason in a case involving several co-defendants, while the prosecution has the right to challenge no more than seven jurors, regardless of the number of co-defendants.[32]
In Georgia and Ireland, it is permissible to avoid a jury without cause. Avoidance without cause delays the jury selection procedure. For example, the existence of this type of mechanism in Georgia allows the defense to obstruct the process. England, Wales, and the United States have no unreasonable avoidance at all. As the legislature has found that this helps to delay the process. That is why it should be justified to abolish the institution of avoidance without cause in both Georgia and Ireland.
2.6 the social guarantees of jurors.
According to Article 28 of the Criminal Code of Georgia: Jurors have the right to be timely indemnified by the State for all the expenses that are directly related to the performance of their duties. The amount of compensation for daily allowances, travel expenses and other direct expenses shall be determined by the High Council of Justice of Georgia.[33]
In Ireland, Jury duty is not a right, but a civic responsibility. Jurors are not compensated for their time on the jury, and they are not reimbursed for their travel expenses. On the days of the trial, lunch is provided; In Ireland, self-employed jurors may ask to be excused from service because they will be unable to make a living. People receiving Jobseeker\u27s Allowance will continue to be paid, but they must notify their local office. Persons in employment – including temporary, contract, or gig economy employees – must be permitted to serve on juries and are entitled to be compensated by their employers during this time.[34]
In view of the above, it should be considered that Irish legislation needs to be refined and regulated. It is critical that jurors be urged to do their civic duty, and that any disadvantages be minimized to the greatest extent feasible. According to the Georgian legislation, transportation for jurors is reimbursed, there are additional benefits for food and accommodation for jurors.[35] There are provisions in England and Wales for the payment of juror allowances, as well as for the payment of travel costs and sustenance.[36]
2.7 the verdict passed by the jury
According to the Criminal Procedure Code of Georgia, jurors make a verdict unanimously, but if the jury fails to arrive at a unanimous decision within 4 hours the decision shall be made within the next 8 hours with the following majority of votes: if the jury is composed of at least 11 jurors, the judgment shall be delivered with 8 votes; if the jury is composed of 10 jurors, the judgment shall be delivered with 7 votes; if a jury is composed of 9 jurors, the judgment shall be delivered with 6 votes; if a jury is composed of 8 jurors, the judgment shall be delivered with 5 votes; if a jury is composed of at least 7 or 6 jurors, the judgment shall be delivered with 4 votes.[37] If a guilty verdict is rendered, the chief juror names the number of jurors who have found the person guilty. The interesting thing here is that if a person is found not guilty by a jury and the decision is made by a majority, the jury still names the number of jurors who have found the person guilty.
The procedure for passing a verdict in Ireland concerns the Criminal Justice Act 1984. Section 25 of the named Act focuses on a unanimously adopted verdict. When the jury is initially sent out to think out, they are told that they must come to an agreement on a decision. This is referred to as a unanimous decision. Furthermore, Section 25 (3) specifies that a majority verdict will not be accepted until the jury has considered it for at least two hours. The court
ქონებრივი დავების გადაწყვეტისას კონფიდენციალობის დაცვის ფარგლები მედიაციაში: რეალობა და გამოწვევები
No full textMediation is a process based on the interests of the parties, which increases the mediators rights to the extent permitted by the disputing parties. The story of the apple heart and rind related to mediation also seems to be easily understood, but, at the same time, it is considered to be a complex problem. In collective disputes, the right of the Minister of Labor, Health and Social Affairs to receive a report from a mediator comes in collision with the requirement of the normative act to the mediator to keep confidential all information entrusted to him during the mediation process. In fact, this regulation requires a change to specify clearly what type and amount of information a mediator is required to provide to a minister. Also in This work is explained the legitimate grounds for breach (break) of confidentiality. in the course of obligation to disclose information by another court decision, the court should only require the disclosure of information directly related to the case from the mediation participants. At the same time, the restriction that information should be disclosed only to an adequate and proportionate extent to a lawful purpose can be considered as a useful tool for the protection of a legitimate purpose – the confidentiality of information. Ultimately one of the important functions of a mediator for the successful completion of mediation in business disputes is to focus on the interests of the parties.
Keywords: Mediation, Confidentiality, The legitimate grounds for break of confidentiality and business disputes.
Introduction
Mediation, as an alternative way of resolving disputes, is not a modern event. It has deep roots in history. The story of the apple heart and bark associated with mediation is also as if it is easily perceived, but at the same time, it is considered a complex problem. The point is that mediation has been formed as a result of the development of historical, social, cultural, and modernist thinking. Creating a psychological portrait of the disputing parties, clarifying their real demands, flowing upon the surface the increased desires or emotions, maintaining confidentiality, and, at the same time, keeping neutrality - this is art, Which is called mediator skills. Benjamin Franklin said: Time is money. These two words and capitalist thinking have further deepened the search for simple ways to resolve disputes. Mediation is the best way to resolve property disputes purposefully quickly, efficiently, at a lower cost, and peacefully. The parties to the mediation are looking for not only a quick way to resolve the dispute but also points of contention. The result of mediation is not the achievement of "loss-making", but the beneficial and peaceful solution of the dispute between the parties.[1] Therefore, mediation creates an opportunity for parties to continue their business relationships even after the dispute is resolved.[2]
The study-perfection of both the legislative and the practice of confidentiality in mediation may refine the legislation, reduce the number of violations, facilitate case identification during violating secret spheres and have a positive impact on the effective resolution of property disputes between parties in the practice.
§1. Mediation and property disputes1.1. The importance of confidentiality in the property disputes
Property is a relationship that arises between entities concerning property goods. Intangible property goodies are requirements and rights.[3]
As for non-property disputes, they should be considered as the opposite of property disputes.[4] In this context, it is important to compensate for intangible damage in cases of violation of personal rights, which is stimulating and performs compensatory-satisfiable functions of the damage caused.[5] In my opinion, the role of the mediator in such disputes is minimal because it will invade the space of more psychology and lose its self-esteem. One of the types of property disputes is family property disputes, which also show the positive features of mediation.[6] The mediator has the right to meet parties separately for 10-15 minutes shortly before the joint meeting with them to ease the stressful and neurotic environment.[7]
Business is an English word and means activities aimed at making a profit, the environment of which is a space full of legal and economic regulations. any state aims to establish an effective legal framework to be attractive to businesses.[8] Business law is not a separate type of classic field and unifies several fields of law.
Confidentiality is considered to be an independent principle among the principles of the mediation process, which can be seen by various peculiarities according to property and non-property disputes. Accordingly, it should be determined the essence and peculiarities of confidentiality, the circle of confidential spheres in mediation, and then - the notion of property dispute, its distinction from the non-property dispute, and specific signs of property dispute resolution in mediation. That is, the challenges facing Georgia in the field of mediation must be defined, especially in the context of confidentiality.
Particularly noteworthy is Article 10, Paragraph 4 of the Law of Georgia on Mediation, on the legitimate grounds for restricting the principle of confidentiality and the exceptional cases of disclosure of information by a mediator. It should be noted that Subparagraph "T" of Paragraph 4 of Article 10 does not preclude the possibility of one party possessing confidential information before mediation, which automatically relieves the party of some obligation to protect the principle of confidentiality. However, the law does not specify whether the party will be deprived of the right to disclose this information after the commencement of mediation. When it comes to mediation in property disputes, more specifically mediation for business, the principle of confidentiality becomes vital. When discussing the principle of confidentiality in this paper, you will find the reasons for its vital necessity: Effective mediation requires sincerity; Fairness to litigants requires confidentiality; The mediator must be neutral both in fact and in the perception of the parties; Privacy is an incentive for many to choose mediation so as not to expose "dirty underwear" in public; also guarantee the protection of mediation programs from publicity and harassment.[9] These reasons may show the need to better protect the principle of confidentiality in national law in parallel with legitimate restrictions. In addition, the institute of mediation became even more relevant during the pandemic, as most human-to-human relationships, including dispute resolution, shifted to distance mode to prevent infection. This is even more interesting in terms of protecting the privacy of the mediation process, especially when there is a high risk of violating private interests when using the Internet.
In my opinion, the nature of mediation is best expressed in property disputes. In this case, the mediator slowly begins to untie the knots, assemble the mosaic, deepen in the essence of problems, bring them to the surface, separate the desires of the parties and differ them from their whims. At the same time, the mediator tries to neutralize the stress and prepare both parties to reach a consensus together. It is here that the factor of trust that the parties derive from the existence of a degree of confidentiality is one of the main factors in completing the case by a settlement.
1.2. The circle of property disputes and their characteristic features
According to the material-legal content of a property dispute, a property dispute is a dispute related to property, which means that the dispute is focused on obtaining financial benefits, regardless of whether the property is materialized (visible) or intangible.[10] The circle of property disputes consists of family, ownership, liability (obligation), contract, corporate, entrepreneurial, and other disputes. Property is possession and obligatory (liability) legal relations. Possession and ownership in property law regulate the material legal regime of persons over the tangible and intangible property. It is characterized by a sign of permanence, while a obligatory relationship regulates the relationship between individuals that arise based on contracts and between specific individuals. The claim arising, in this case, relates to a property interest. For example, it may be related to the possession of an item.[11] The most common form of emergence of a business relationship can be considered a contract. The general part of the law of obligations is common to all private law contracts.[12] As for the disputes arising from the entrails of family law, this issue is regulated by the third chapter of the first section of the fifth book of the Civil Code of Georgia, where the rights and obligations of the spouses are mentioned.[13]
§ 2. The essence of privacy and the circle of confidential data2.1. The essence and features of privacy
In the mediation process, the mediator informs the parties about the terms and conditions of confidentiality. Due to confidentiality, the important circumstances of the case are discussed openly and in-depth, the parties discuss and disclose confidential information to them because they know that the information disclosed during the mediation will not be used against them.[14] The principle of confidentiality is characterized by features and it is manifested within its limits. Although mediators often make extensive statements and argue that everything in mediation is confidential, the norms governing mediation give a different reality. Such a simple way of offering confidentiality does not contribute to the self-determination of the parties.[15] For the parties to self-determine, they must know - how much information to give, in what form to communicate, what level of trust they should have. When the providing of legal information is neglected, the party does not act according to its own decision, but by deception. Informed consent in mediation is exactly the basis of self-determination and at the same time refers to the principle of confidentiality. Although mediation is advertised as protecting the privacy of the parties, it does not give absolute immunity. If the majority of the parties prefer that everything that is revealed in the mediation process be kept secret, then the mediator should inform them about the exceptional cases that the law requires the mediator to disclose information.[16]
2.2. Circle of confidential data
Confidential information protects any information that became known or disclosed during the mediation process. Even if there is a legitimate basis for restricting confidentiality, the information should be disclosed to the maximum restricted extent, of which the relevant party shall be notified in advance. In addition, information may be disclosed only adequately and proportionate to legitimate aim in such a way that the confidentiality of the information is protected as much as possible from outside persons.[17] Such assessment components may pose new threats to a high degree of confidentiality. It is interesting how correct is the record in Article 10, Paragraph 7 of the Law of Georgia on Mediation on the duty of protection of confidentiality for an indefinite period. In the mediation process, the parties may not be able to evaluate what information they want to store in the future and what information may be intentionally or unintentionally made accessible (disclosed) to the public. Therefore, they did not agree in advance and in writing on the period of their confidential storage. Over time, information that is no longer confidential may be disclosed by the information holder himself or by any person involved in the mediation without thinking, and this in itself may produce problems in the area of confidentiality. Therefore, it may be appropriate to have a record in the future in Georgian law following the German model: After the mediation is completed, if the information is already clear, open, and revealed to everyone, there is no legitimate interest to keep confidentiality of that information and is no longer subject to the protection of confidentiality principle.
§ 3. Entities bound by the duty of protection of confidentiality3.1. Parties and representatives of the parties
The parties have the right to choose a mediator at their discretion. The initiating party of mediation may send a written invitation to the other party to resolve the dispute through mediation.[18] The other party may accept the invitation or decline it. Only after the voluntary consent of both parties do the parties begin to establish rules and select a mediator. In the case of private mediation, in the event of concluding a mediation agreement, the principle of confidentiality applies only to persons signing the contract, therefore it will be better if third parties who will be involved in the mediation process will sign that contract at the same time as the disputing parties, representatives and the mediator will sign.[19] It is important to note that the parties should be interested in each other, have positions that share and reconcile the interests of both parties. This will help the mediator to plan the agenda and manage the mediation process effectively. The parties should also observe their relationship separated from mediation if this relationship continues.[20] The representative, together with the party, should select a mediator with the appropriate skills for the case. Representatives of the parties should also be able to: A) work on the conditions voiced in the mediation process; B) draft an act of agreement and legal interpretation; C) termination of mediation in case of its ineffectiveness and disadvantageous (perspectiveless).[21]
3.2. Mediator, third parties
Compliance of the mediator with the best standards is not enough to successfully manage mediation, it is necessary for the mediator to develop certain skills, for example: Ability to search for alternative ways, ability to obtain the necessary information based on questions, ability to raise necessary issues under the status of a neutral third party.[22] The mediator can use paraphrasing, which will allow the parties to see the situation or facts from a different angle, and as a result, parties can change their behavior. The purpose of paraphrasing is to transform an aggressive environment into a friendly situation and to try to move the parties from the positioning stage to the representation of their interests. In the presence of a strong emotional background, the parties sometimes think the problem or complaint is unacceptable and absolutely unsolvable, here too the mediator can change the wording of the complaint to show the party that the problem is solvable if he wishes.[23] Under German law, third parties, such as mediator assistants, who have an obligation not to disclose information about the mediation process, may be involved in mediation in addition to the parties and the mediator, however, with the consent of the parties, experts, or neighbors involved in third parties are not bound by this obligation.[24] According to Georgian law, participants in mediation are prohibited from using information obtained during the mediation process in court. Thus, we must assume that the general rule applies to third parties as well: the mediation process is confidential. Therefore, logically they should not have the right to disclose information. However, we do not find a specific entry on this issue in the Law on Mediation, It is also unclear after the completion of mediation according to Paragraph 7 of Article 10 of the Law of Georgia on Mediation, whether the third party is also implied in the obligation to protect the confidentiality and this poses a problem. In my opinion, it is better to include third parties in the record of this paragraph. Moreover, the Minister of Health, Labour and Social Affairs of Georgia can be considered as a third party in labor disputes. The Minister has a wide range of powers in process of collective dispute mediation.
§ 4. Business Mediation and International Acts4.1. Recommendations for successful mediation
When it comes to business mediation, one type of effective mediation can be considered interest-based mediation. Institutional commercial mediation is a court-free process of private mediation that conforms to the usual characteristics of modern mediation, but for various reasons, it is less commonly used by foreign enterprises.[25] Recommendations for successful completion of business mediation are: A) Creativity of the mediation process (invitation of experts in the presence of the parties); B) to have fun in process of mediation. The process of mediation is mostly tense and emotional background prevails, especially tiring when this process takes hours.Therefore, a little humor and laughter will help the mediation process; C) Patience, listening carefully to the problems of the disputing parties. the glacial pace of offer and demand can be frustrating and can lead to a worsening of the situation, so it is best when the parties continue a productive discussion; D) realistic evaluation of the case and flexibility; E) mediation is not a trial. Subject to the variances due to case complexity, very little is gained, and much might be lost than would be possible through court. The goal of mediation is to reach a compromise, not establish victory. F) Design a process that works for your client. In multi-party business disputes it maybe essential that the process be segmented. It is necessary to listen to all parties separately if the emotional background prevails; G) Identification of goals - The mediator should be able to assist the party representative or the party itself in planning a wide range of settlement options and finding ways to resolve them, as well as in determining the predicted outcomes of the mediation process.[26] In 2020, the pandemic of the Covid-19 plunged the whole world into a deadlock, with many commercial relations suspended without the fault of the parties, hence the courts of the whole world are preparing for the tsunami of legal cases arising from the pandemic, And the main thing for business is to survive this global economic downturn, which will depend on a timely and commercially reasonable solution to the dispute, and mediation can be considered an effective tool.[27]
Detailed protocols as to the conduct of online hearings have been almost universally developed by both courts and arbitral institutions, focusing on fairness, efficiency, use of innovative technology, confidentiality and cybersecurity. Legislation adopted in response to the pandemic in the jurisdictions surveyed by the International Bar Association is largely focused on public health.[28] As the pandemic’s impact has continued, many stakeholders have increasingly used innovative digital technology, flexible scheduling and flexible cost structures. Innovative digital technology being used for dispute resolution proceedings includes document management and automated docketing, blockchain, visual perception tools (including facial recognition technologies, radar, light detection and ranging (LIDAR) and ultrasound sensors) and etc.[29]
4.2. The issue of mediation confidentiality and autonomy under the UNCITRAL Model Law
The United Nations Commission on International Trade Law (UNCITRAL) was established for the facilitation of international trade, as well as to modernize and unify it.[30] UNCITRAL plays an important role in developing that framework in pursuance of its mandate to further the progressive harmonization and modernization of the law of international trade by preparing and promoting the use and adoption of legislative and non-legislative instruments in a number of key areas of commercial law.[31] In 2018, the UN General Assembly adopted a resolution emphasizing the importance of mediation.[32] The UN Assembly Resolution on the Model Law mentions the benefits of mediation, which are related to the unloading of justice, the elimination of tensions, and the chance to continue commercial relations as opposed to litigation. Under Paragraph 3 of Article 1 of Model law on international commercial conciliation, the conciliator assists the disputing parties to settle the dispute amicably, although the conciliator does not have the authority to impose upon the parties a solution to the dispute. Articles 8 and 9 of the Model Law are noteworthy. Article 8 regulates the disclosure of information provided specifically by a party, according to which when the conciliator receives information concerning the dispute from a party, the conciliator may disclose the substance of that information to any other party to the conciliation. However, when a party gives any information to the conciliator, subject to a specific condition that it be kept confidential, that information shall not be disclosed to any other party to the conciliation.[33] Article 9 regulates the issue of privacy in general, according to which unless otherwise agreed by the parties, all information relating to the conciliation/mediation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.[34] Thus, there is a small difference between disclosing the essence of the dispute and information protected by the principle of confidentiality in general.
§ 5. Legitimate grounds for breaking confidentiality5.1. Confidentiality - Relative or Absolute value?
Civil rights are a power granted by civil law to protect the interests of private individuals.[35]
ქართული კერძო სამართლის განვითარების რამდენიმე თავისებურება 90-იანი წლებიდან დღემდე
No full textThe presented article is dedicated to the trends of development of Georgian private law from the 90s to our days. In the scientific work are considered several essential legal reforms in the direction of both general private law and special branches of private law (labor law, corporate law). Accordingly, the article explores the grounds for legislative changes, their negative and positive sides. The purpose of the research is, first of all, to determine what are the features of common law and the law of continental Europe, then to determine which of them were reflected in the legislative changes implemented in Georgian private law, and with what specificity. Accordingly, the article analyzes the tendencies of private law development in Georgia with regard to legal reforms. The research confirms that most of the legislative changes served as a departure from Soviet rules, which was considered as a difficult task. At the same time, the reforms were aimed at bringing them closer to European standards and improving national legislation, although it became clear that the implementation of separate changes was based on the influence of American law too.
Keywords: Private Law, Development, Legislative Changes, European Law
Introduction
In the 1990s, Georgian private law faced a choice - to be faithful to the old rules or to share the path of European development. Obviously, this was the basis for the reforms to be carried out in the field of Georgian private law. In this context, the purpose of the study is to briefly discuss the steps taken for the adoption of the Civil Code of Georgia of 1997 (hereinafter – Civil Code) and to analyze and evaluate the legislative innovations. It should be determined here what influence the process of reception and European law had on Georgian private law, what are the characteristics of Common law and Continental European law, which of them are reflected in Georgian private law – peculiarities of European law or Common law.
Therefore, this article is concerned not only with the main legislative changes in the field of private law, but also with what was the basis of this or that legislative change, whether these changes were progressive or not. In this way, it will be clear how Georgian private law was changing. This issue is important not only from a theoretical, but also from a practical point of view, since it determines what was the basis for making various legislative changes and what allows for a proper interpretation of the current version, which is a prerequisite for its correct use in practice.
Thus, in the research, with the help of historical, normative-dogmatic, synthesis and analysis methods, the main reforms carried out in private law from the 90s to the present, which relate to various aspects of the development of the field, are discussed.
National Law and Continental European Law
In general, the Europeanization of law is related to many aspects, the most important of which is the clearly expressed will of the state and the people to be a member of the European family. It is also important to introduce European values in the country.
Law (considered as a constituent part of culture), its reception involves consideration of both cultural and technical factors.[1] Accordingly, the recognition of Georgia as part of the legal culture of continental Europe implies the formation of a new legal culture in Georgia. The Europeanization of Georgian law is also a cultural-historical process, in which close cooperation with European universities and legal scientists is particularly important.[2]
In the beginning, the Europeanization of private law was promoted and carried out by the Germans as an academic task. Then this idea was shared by other European countries, such as: Italy, Spain (especially Catalonia), Scotland and the Netherlands. In contrast, the attitude towards research on the Europeanization of private law has been extremely cautious in other countries, notably France. In itself, the idea of Europeanization has been strongly promoted by EU directives.[3]
In addition, in the process of Europeanization, it is most important to adapt legal education to European standards, to receive education in European universities.[4] If students continue to study the basics of national legal systems without understanding their historical development and without showing other ways of solving this or that problem, then there is a great risk of national particularization of jurisprudence. This can lead to confusion of different circumstances, unjustified actions and formation of the next generation of lawyers accordingly. Therefore, the Europeanization of legal education requires the strengthening of such subjects, which are distinguished not only by their basic specificity, but also by their inherent internationality.[5]
It should be noted here that the adaptation of the national legislation to the European requirements is one of the most important tasks in terms of the development of the legal base as well as the rapprochement with Europe.
It is interesting to briefly present the difference between the legal systems in order to determine characteristic features of which legal family are found in the civil legislation of Georgia according to the current situation.
In general, Continental European law recognizes the principle of separation of powers, from which it follows that the judiciary does not have the power of law-making activity. However, Anglo-American law considers law to be what a judge thinks it is.[6]
Legislation is considered the main source of law in Continental European law countries. Large areas are systematically codified and based on a certain system. The code is not a set of special norms regulating specific relations; it regulates relations between persons with the help of general reservations and principles so as to be comprehensive and applicable to all subjects. As for Common law, in this case the judge is focused on individual cases and the precedents are his guide. Common law considers these decisions as sources of law. A decision made in Common law countries is binding not only for the parties to this relationship, but must be respected in similar cases arising in the future. In fact, Common law includes all the rules that can be generalized from court decisions.[7] Accordingly, Continental European law is characterized by a deductive way of thinking: legal disputes are resolved using the appropriate rule(s) from a systematized code. Immanent to the Common law is an inductive style of reasoning: disputes are resolved by finding cases based on similar facts.[8]
It is true that Georgian law is a member of the family of Continental European law, but it is also obvious to recognize the trends of Common law. For example, more and more importance is attached to judicial precedents, and casuistic thinking is introduced as well. The assessment of the stages of development of private law legislation from the 90s to the present will give us a relatively accurate picture of how much and in what direction it was developing; Sharing the experience of which law was the basis for various legislative changes.
Thus, in the process of Europeanization, it is essential to consider European directives, values, legal education and other circumstances. However, the question arises: what is the scope of application of European law - is it necessary to limit its use, or should it be considered vertically and unconditionally?
The German Constitutional Court discussed this and explained that the use of European law is important for the development of national law, although it is necessary to observe certain limits. The fact is that independent states are united in the European Union, and it is the responsibility of the national legislative authorities not to violate the sovereignty of the state when applying European legislation. Therefore, the court explained that in this process it is necessary to leave free space for the EU member states to define economic, cultural and social policies.[9]
At the Beginnings of Georgian Private Law
In the 90s of the 20th century, Georgia was faced with a choice - to participate in the CIS model code development group or to cooperate with the Germans. The final choice rested on the Europeans. With the help of the civil code, Georgia shared the cultural world of the West and the developed legal culture.[10] In 1991, the governmental commission for developing the Civil Code was created under the leadership of Professor Sergo Zorbenadze, who gathered mainly his student professors: Lado Chanturia, Zurab Akhvlediani, Roman Shengelia, Besarion Zoidze. The code drafting commission worked for almost three years with its full composition.[11] Despite the civil war of 1992-1994, the commission did not stop its work.[12]
Since 1993, intensive consultations with German colleagues, led by Professor Rolf Knipper of the University of Bremen, began. The President of Georgia submitted a legislative initiative to the Parliament, which unanimously adopted the Civil Code on June 26, 1997 - the first Civil Code in the history of independent Georgia.[13]
Finally, similar to German private law, Georgian private law combined general private law (civil law) and special branches of private law, which include special rules for regulating specific relationships.[14] This idea is shared in Georgian law. The civil code and other laws of private law provide the legal basis for this.[15]
Georgian judicial practice also recognizes this concept. For example, the Supreme Court of Georgia noted in one of the cases that Georgian civil law is general private law. The activity of institutions provided for by the Civil Code is not limited to civil law and extends to other branches of private law as well.[16] This especially applies to the introductory part of civil law, as it regulates such institutions of private legal relations as persons, transactions, terms and others. Therefore, the general provisions of the civil law are applied to the issues of labor relations that are not regulated by the Labor Code.[17]
General Part of Civil Law
The Civil Code of Georgia was based on the system of Pandetc law, because the general part of the civil law and the special books of the civil law were separated. In this way, the provisions of the general part of civil law apply to special branches of civil law as well,[18] unless a special norm establishes a different regulation.
Regarding the legal status of persons, Georgia has carried out an important reform and brought the national legislation closer to the UN Convention on the Rights of Persons with Disabilities, which it ratified on December 26, 2013. As a result, in 2015, a legal amendment was introduced in the Civil Code,[19] by which, instead of the term “retarded”, the term “person in need of psychosocial support” (beneficiary of support) appeared; it was established that a person who, despite psychological, mental and/or intellectual disorders, is considered capable of action is regarded a beneficiary of support. Accordingly, he was given the opportunity to exercise his civil rights and duties. However, if the beneficiary of support needed help (support) in this or that relationship to implement his will and action, he is assigned a supporter for the purpose of assistance.[20]
In addition, the term “personal relations” can be found in the Civil Code. The civil legislation of the old regime (Georgian SSR) used the similar term “personal non-property relations”. In this context, civil legislation protects personal rights whose objects are inseparable from the person, and personal rights whose objects are separable from the subject (name, image, personal data, etc.) are regulated. Nevertheless, the impact of private law on the protected and regulated relations in Article 1 of the Civil Code is conveyed by one term – “regulation”.[21] In addition, if the Western countries (Germany, France) created the institution of personal non-property rights only as a result of judicial law, Georgia strengthened it by legislation. In the general part of the civil law of Georgia, the circle of personal non-property rights was determined based on the singular principle, and the protection of personal rights was based on the beginning of the generalization of personality. Accordingly, those personal rights that are not listed in Article 18 of the general part of civil law can be filled and protected by the most general norm of tort law - Article 992 of the Civil Code. In addition, in Germany there is a rule of “compensation for non-material damage in cases defined by law”, which is shared in Georgia, however, Germany is taking the path of expanding non-material damage compensation based on the recognition of the “general personal right” within the framework of the legislative amendment and Article 823 of the German Civil Code. Georgian civilization hardly adapts to such innovations. Accordingly, it is advisable to expand the cases of compensation for non-material damages in Georgia, taking into account scientific knowledge and German experience.[22]
An amendment was made in the 2nd part of Article 18 of the Civil Code, which brought this part of the Code closer to the American law. For example, in some countries, including the USA, defamation does not lead to criminal liability. Georgia also shared this approach. The Law “On Freedom of Speech and Expression” was adopted, which, by reversing the burden of proof, imposed on the plaintiff the duty to prove the inconsistency of the information spread about him. This should indicate the effect of US law. This law introduced the concept of a public person, outlined the need to separate fact and opinion, and more. Accordingly, the law took into account the standards of freedom of expression that are close to the norms recognized in European and American law.[23] Thus, with the Law “On Freedom of Speech and Expression”, mostly the trends of American law were reflected and the freedom of expression was greatly expanded. However, it is noteworthy that Georgia is a member of the Continental European law family and a higher standard of protection of dignity is recognized by the Constitution of Georgia.[24] Accordingly, the current law, on the contrary, should strengthen the constitutional norm and regulate relations, taking into account the peculiarities of national law.
Taking into account the international obligation, Article 181 (the right to receive personal data) was added to the Civil Code, and personal data was included in the scope of private legal protection.[25] However, this article does not contain information about which claims the victim can submit in case of violation of the right. Therefore, it is true that the receiving of personal data was reflected in the Civil Code, but since the law, in addition to being clear and precise, should also contain effective sanctions, the European standards were partially taken into account by the legislative amendment.[26]
Then comes the chapter on legal entities in the Civil Code. Unlike the Model Civil Code of the CIS, Georgia has fully regulated the legal status of legal entities in the Civil Code. It means the classification of legal entities into private law and public law legal entities, which is a novelty for the post-Soviet space. In addition, it was determined that all legal entities under public law, primarily the state, participate in private law relations on an equal basis with others. In this way, the Georgian Civil Code rejected the prevailing opinion in the Soviet and post-Soviet space that the state is a special subject of civil law. If the state exercises such special powers as law-making or expropriation of property, in this case it participates in the relationship as a legal entity under public law. Accordingly, under these conditions, its action is of a public law nature (and not civil law).[27] On May 25, 2006, a change was introduced in the Civil Code - the registration of non-commercial legal entities (associations and foundations) was completely transferred from the Ministry of Justice to the tax authority. In this way, the state and tax registration of legal entities were equated with each other, thus the registration acquired more a tax control function rather than a private legal meaning.[28]
The amendment directly affected legal entities as well. Until 2007, the Civil Code contained norms regarding the union and the foundation as non-commercial legal entities, but, according to the legislative changes of December 2006, these provisions were completely removed from the Code. The point is that before the changes, the legislator set different requirements for the union and the fund. For example, if the foundation of the union required the presence of at least five persons, the foundation was a legal entity that had no members. In addition, for the establishment of the fund, the founder was obliged to contribute property to the fund in the amount necessary to achieve the goal of the fund, etc. Since these restrictions on non-entrepreneurial legal entities were abolished by this legislative amendment, the existence of two organizational-legal forms of non-entrepreneurial legal entities - association and foundation - became meaningless. Accordingly, the need to divide non-entrepreneurial legal entities into associations and foundations was removed.[29] By removing the norms about them, the legislator took into account the single and very abstract concept of “non-entrepreneurial (non-commercial) legal entities” of a non-entrepreneurial legal entity. This was probably done under the influence of American law.[30] As a result, the Civil Code did not regulate the structure and authority of the governing bodies, the rights of the members, and the regulation of these issues was left to the discretion of the statute. Such a liberal approach to regulating non-commercial legal entities is questionable where there is no tradition of civil society and the legal culture is low. Under these circumstances, the legislator should try to provide a detailed legal regulation in order to have a clear and comprehensive idea of the rules of the game. Therefore, it was rightly pointed out in the legal literature that this part of the Civil Code should be revised again.[31]
In addition, in 2009, amendments were made to the Civil Code again, after which the registration of legal entities was transferred from the tax authority to the system of the Ministry of Justice.[32]
Here, since the investment legislation did not respond to the international practice and the requirements of the EU Association Agreement, the question of a fundamental amendment of the investment legislation was raised. The purpose of this change was to develop the capital market and bring the national legal framework closer to both international practice and European standards.[33] The preparation of the draft Law “On Investment Funds” and the promotion of the implementation of the regulatory framework of funds stipulated by this draft law led to amendments in the Civil Code. On July 14, 2020, Articles 491 and 492 were added to the Code,[34] which refer to the joint investment fund and the sub-fund of the investment fund. A joint investment fund is an organizational entity that is not a legal entity. A sub-fund of an investment fund is part of a mutual investment fund.
Structurally, then, the concept and form of transaction, voidable and void transactions, consent and representation in transactions are provided in Civil Code. This is followed by the scope and prerequisites for the exercise of the right, terms, and period of limitations. Legal amendments also affected transactions. For example, until May 8, 2012, Article 55 contained two parts: the first one related to the invalidity of a transaction if this transaction established a clear inconsistency between certain performance and the remuneration determined for this performance, and the transaction was concluded because one of the parties used market power or the severe condition of the party to the contract, or inexperience (naivety). As a result of the legislative amendment of May 8, 2012, the first part of Article 55 was canceled. The reason for this was that a new Law “On Free Trade and Competition” was passed, which took into account such deals. It is true that Article 6 of this law regulates cases of abuse of a dominant position, but, as noted in the legal literature, this does not justify the annulment of the first part of Article 55 of the Civil Code.[35]
Also noteworthy is the amendment related to the suspension of the term of limitation period. The fact is that the suspension of the term of limitation period of the claim in Article 132 of the Civil Code became possible on another basis, namely, the initiation of private mediation, which is provided for by the Law of Georgia “On Mediation”.[36]
Law of Things
Taking into account the traditional system, the second book in the Civil Code was devoted to the law of things, and the third book was devoted to the law of obligations. It was considered logical, first of all, to regulate the static existence of property goods in the law of things, and then to recognize them in dynamics with the norms of the law of obligation.[37]
Georgian commercial law begins with the concept of property. Also, a separate section is devoted to posession, which “shall be acquired by obtaining actual control of the object, coupled with the intention of doing so.” (Part 1 of Article 155 of the Civil Code).
The next section is about property rights. Georgian civil law was separated from Soviet law and in the post-Soviet space, it managed to overcome its influence effortlessly. The recognition of private property turned out to be the mo
Judicial Approach Amidst Growing Live-in Relationship
Get PDFPurpose: The purpose of this article is to comprehend the Judiciarys response and apprehend the pace of change in the social dynamics of the society about live-in relations. This article also comprehends the inter-linkage of the concept of live-in relationships vis-à-vis other laws, which require more clarity.
Design/Methodology: In this study, the research brings down the concept of a live-in relationship by analyzing various judgments down the link from pre-independence to post-independence through the Protection of Women from Domestic Violence Act, 2005 (PWDWA). This study analyzed the data of the Supreme Court and High Courts down the line from 2010 to 2021 and analyzed the high courts that have the maximum number of cases. The approach is to identify how Judiciary interprets the live-in relationship in different facts under the light of various laws.
Practical Implication: This study helps to identify the way forward in the absence of the legislative framework on live-in relationships through the interpretation by the Hon’ble Supreme Court and other High Courts.
Originalities/Value: This study is predominantly based upon the question placed before the larger bench by Madras High Court as to whether the woman is entitled to get a pension in a live-in relationship. The resultant of this work is based upon the opinion of the existing judgment that brings support to reach out to the conclusion.
Outcome/Finding: The dimension of the social changes and changing the mindset of youth is an accepted fact to give legal recognition to live-in relationships. The Court has paved the way for a live-in relationship in property, maintenance, and domestic violence. This is high time for the legislature to code the separate statute for the live-in relationship so that the women from this relationship have not exploited due to the non-presence of the statute.
Keywords: Domestic violence, Judicial approach, Live-in relationship, Social changes.
Introduction
In the present era, the social structure changes because of the change in the mindset of the people and social dynamics. The factors that change society\u27s mindset are globalization, freedom, privacy, and profession. They are chiefly responsible for fading society\u27s cultural normative ideology towards \u27live-in relationship.\u27
Through a process of amendment, the law takes its time to explain such societal changes. As a result, the law cannot afford to remain stagnant in a changing world. If one examines the evolution of Hindu law across time, it becomes apparent that it was never static and has altered to meet the challenges of changing societal patterns at various times[1].
In the case of Velusamy vs. D. Patchaiammal[2] the expression "relationship in the form of marriage," which is contained under the definition of "domestic relationship," as not being crystal clear, as respects the scope of the definition as would have been necessary. So the Hon’ble Supreme Court defines the “relationship in the nature of marriage,” in conjunction with the eligibility criteria being read into it.
The Supreme Court and various High courts pronounce the judgment on many issues which involve property, alimony, and the rights of the children born out from the relationship. Recently, the Madras High Court referred to the question of whether a woman in a live-in relationship can be entitled to a pension of the deceased partner to the larger bench. The present case brings many issues concerning the live-in relationship in the absence of any statute. Therefore, the solution related to the issue requires an analytical view from various judicial pronouncements on the subject matter.
1. Literature Review
Anuja Agrawal describes in her paper Law and live-in relationships in India (2012) that the nature of heterosexual relations is in focus since the early recommendations were made by Malimath Committee Report. However, she opines that the nature of the legal sanction accorded to the live-in relationships in India is far from reaching the legal consensus that has arrived in western countries.
In his research, Judicial approach to the live-in relationship in India; Its impact on other related Statutes (2014), the author Sonali Abhang examines the judicial approach and finds that the laws need to change for the child borne out of such relations are not getting the full access to the rights which the other children born out of the legally sanctioned marriage are given. For instance, the former is not liable to avail the ancestral properties. Moreover, she also finds out that most countries have given legal sanctions to the live-in relationship. Furthermore, she also calls for amendments to CrPC, IEA, and the Hindu Marriage Act.
Dr. Swarupa N Dholam examines the context and relevance of the impugned inquiry and explains that there ought to be separate law. Furthermore, he states in his paper Socio-legal dimensions of live-in Relationship in India (2015) that such separately existing law is necessary because such cohabitation affects them and the children born out of such relationship.
Sweta Gupta describes the state of those in such relationships in her Ph.D. thesis entitled Women and law in India with particular reference to the live-in relationship (2017) as ones with too many dilemmas about succession, divorce, maintenance, guardianship, domestic violence, etc. One fundamental question she arouses is the unanswered question of law in terms of the break-up. She opines that sanctity ought to be given to such live-in relationships after a certain period. This endeavor will undoubtedly enhance the nature of legal rights envisaged by the parties when they consented to cohabit together. The law has to play a central role in reforming and bringing positive modern values into the relationships built thereupon by two adult consenting parties.
Astha Saxena, in her paper Live in a relationship and Indian Judiciary (2019), states that so far, the Judiciary has shied away from treating all the living relationships as in nature of marriage. This eventually has led to no similar judgments being pronounced in like cases. Moreover, she reiterates a need for a definite law so that the scope of different opinions is slimed away.
On theme Social and legal provisions related to live-in relationship in India: an Evaluation (2021), its author Shyam Prakash Pandey states that the Indian Judiciary has a divergent view on the current topic and therefore underscores the need for the law. He furthermore opines that law traditionally has been biased in favour of the marriage, however, where two-person consent to live together in nature of marriage. However, without marrying, then in such a case, the law must come to protect the women as they are not equal to men due to patriarchal society.
Meanwhile, Choudhary Laxmi Narayan and ors. in their paper entitled Live-in relationships in India; legal and psychological implications (2021), delves upon the issue under consideration and states that it is good to be in a good-quality relationship from the perspective of mental health. He states the research carried on by Harvard University wherein the findings published in 2012 after many years of the study show that health and happiness do not result from wealth, fame, or hard work but instead from relationships.
2. Judicial Development on Live-in Relationship
In India, there is no law explicitly addressing live-in relationships. In the absence thereof, many provisions are read into for understanding the implications of such a relationship. One such law is The Hindu Marriage Act of 1955 which establishes the legitimacy of children born of invalid or voidable marriages and their succession and property rights.
2.1 Privy Council view on the Concept of Living partners before Independence
The Privy Council[3] elucidates on the concept of Living partners by stating that if a man and a woman are proven to have lived together as husband and wife, the law will postulate that they were living together as a result of legitimate marriage and not in a condition of concubine unless the reverse is convincingly demonstrated. The case of the Privy Council was referred in the case of Tulsa & Ors vs. Durghatiya & Ors[4], wherein the Supreme Court held that there is a \u27presumption of marriage\u27 u/S.114[5], when a man and a woman live together as husband and wife for a prolonged period. In another case where the Lahore High Court[6] said that when a man and a woman have cohabited regularly for several years, the law presumes in favor of marriage and against concubine.
2.2 The Hon’ble Supreme Court precedents on the Concept of Living partners
The Supreme Court, in various judgments, streamlines the concept of a live-in relationship. In the case of Badri Prasad v. Dy. Director of Consolidation[7] the Court held that very few of the married couple would succeed if they require proof as husband and wife in a society where they have to establish by an eye-witness proof that they were legitimately married fifty years earlier after half a century of wedlock.
There is a strong conjecture in favor of wedlock in the scenario in which the couples have lived as husband and wife for a more extended period. Whereas, the presumption is rebuttable on the ground that the person seeking to deprive the relationship of its legal genesis bears a hard difficulty to prove it. When oral and other trustworthy evidence shows that the couple lived as husband and wife, the family record does not reflect them as husband and wife is not conclusive evidence to dispute their husband and wife connection.[8].
In the case of Madan Mohan Singh v. Rajni Kant[9]The Court categorically referred that the long-term relationship cannot be considered a walk-in and walk-out relationship. The Court inferred through this point that the long-term relationship could be treated as like marriage. In another case of S. Khushboo v. Kanniammal[10] the Court ruled that a living relationship falls within Article 21 of the Indian Constitution\u27s right to life. The Court went on to say that live-in relationships are legal and that the act of two adults living together is not illegal or criminal.
The Hon’ble Supreme Court precedent on the point of maintenance under S. 125 CRPC of Live-in partners
A question raised before the apex court[11] whether the partners live-in together as husband and wife are entitled to get maintenance under S. 125 of CRPC. The Court held that the term \u27wife\u27 includes a man and a woman living together as husband and wife for an extended period. To fulfill the true spirit and essence of the beneficial provision of maintenance under Section 125 of the Cr.P.C, strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C.
In the case of Chanmuniya v. Virendra Kumar Singh Kushwaha[12], the question was raised before the Court whether the women entitled to get maintenance if not legally wedded, under sec. 125 Cr.P.C. The Court held that the cause of maintenance should be read in the light of sec. 26 of Protection of Women from Domestic Violence Act, 2005 (PWDWA), and hence the maintenance was granted in this case.
2.3. The Hon’ble Supreme Court precedent on the point of an aggrieved person under Domestic Violence Act, 2005
For the first time in the field of the live-in partner, the statute to provide the structural support by acknowledging the live-in relationship was under the ambit of Protection of Women from Domestic Violence Act, 2005 (PWDWA). The act protected the woman who is not married but living with the male partner in a relationship akin to the idea of marriage. The definition of ‘domestic relationship’[13] means a relationship of two-person people living together in a shared household, and the definition expressly used the term \u27in the nature of marriage.\u27
The question frequently raised before the Court is about the maintenance of a woman who lived together with a man as husband and wife, wherein the Court has to decide what a relationship like marriage is. The Court mentions the elements of a \u27Common Law Marriage,\u27 stating that not all "live-in relationships" are equivalent to "marriage-like relationships." As an example, the Court adds that simply spending weekends together, or "a one-night stand" in a case, is not enough. The Court also added into it that "Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005".
In the case of Indra Sarma v. V.K.V. Sarma, the Court emphasized the facts of the case and held that if a woman is aware that the man is married, knowing the fact entered into a relationship, and under that circumstances, the Court denies the relief, which evidently is a gross injustice to the victim of such relationship. This case brings out many folds on a live-in relationship where the Supreme Court requests the parliament to legislate the statute to bring down the clarity for the Judiciary and society.
2.4. Malimath Committee Report on Live-in Relationship
The Committee give its suggestion regarding the maintenance of a second wife in the presence of the first wife. An attempt was made to address injustice with the second wife-like relationship of a woman. The committee referred that the illegal act of the man should not give unnecessary suffering to a woman who might be under dark relating to the information of his marriage. During 2008, the state of Maharashtra brought into effect the suggestion and incorporated into law which brought the legal status for \u27live-in relationship\u27 into the public domain. A critical examination of some of the Malimath Committee\u27s recommendations and aspects, as well as the debates surrounding the Protection of Women from Domestic Violence Act 2005, reveals that the legal changes are primarily aimed at recognizing women\u27s vulnerable position within traditional forms of non-marital relationships[14].
3. The present question is whether the woman in a live-in relationship can be entitled to the deceased partner\u27s pension.
The concept of a live-in relationship or live-in partner does not have a statute. In contrast, the change in the mind of the society and the judicial interpretation progressively focussed on the social justice to the woman who is in the long period of a relationship. The Hon\u27ble Supreme Court in the case of Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors[15]held that Section 125 is essentially the same as Section 488 of the Cr.P.C. of 1898, except that parents are now included in the group of people entitled to support. It was noted that this provision is a measure of social justice explicitly designed to safeguard and prevent the neglect of women, children, the elderly, and the infirm and that it fits within the constitutional sweep of Art. 15(3), which Art reinforces. 39.
Justice Krishna Iyer observed that- "We do not doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking that interpretation out of two alternatives which advance the cause- the cause of the derelicts."
In the case of Savitaben Somabhat Bhatiya v. State of Gujarat & others[16], the Court held that it was desirable to recognize the predicament of an unfortunate lady who inadvertently comes into wedlock with a married man, as there is no scope to include a woman who is not lawfully married under the word of \u27wife.\u27 Only the Legislature, according to the Court, may correct this legal shortcoming.
4. Statistical Analysis of Supreme Court and High Courts from 2010 to 2021
The term \u27live-in relationship\u27 was searched in the database of manupatra from the year 2010 to 2021, and the researchers found a mixed analysis of the increase and decrease of cases in the apex courts. The database of manupatra filter out by selecting the judgment of Supreme Court and High Courts down the line year-wise that there is the constant increase of cross-laws like from property acquisition to succession; from claim-maintenance to maintenance entitlement which leads the legislature to integrate the live-in relationship law into various other existing statutes.
Fig. 1 The year-wise case on the live-in relationship of Supreme Court and High Courts
The above graphical shows the structure of increase and decrease of cases whereas in the year 2020 due to pandemic there is less number of the case whereas the increase of case is the resultant of the year 2020. The case related to live-in relationships saw a sharp rise in 2021 because, during the pandemic, not many cases were entertained, but after, there was a significant rise of cases before the high courts.
Fig. 2 Cases in Supreme Court and High Courts (top ten based on no. of the case)
The above represent that in the year 2021, the Court that leads in terms of case related to live-in relationship followed by Punjab and Haryana High court, which are neighbouring state and the reason behind these high statistics based on the societal change. The cosmopolitan nature in this area is the core reason for an increasing live-in relationship which creates issues that land in the courts for resolution.
5. Conclusion & Suggestion
Inadvertent relationships or relationships made in an attempt to evade the controversies with the society may promote live-in relationships among the newer generation. They are not legally wedded by cohabiting together in a relationship in the nature of husband and wife. In such circumstances, what would be the rights and duties of the parties therein? There ought to be a legal statute on that issue to address such a question. However, if any such particular law is absent, then what? Such was the question before us in the present context of live-in relationships.
It is found, as stated, that there is no statute specifically dealing with the matter under consideration. So should it be assumed that the parties have no rights and obligations? Should no Acts affect such instances? It seems any strict interpretation of laws would deprive many of the rights that could have been brought in under the assumption of various provisions. Furthermore, therefore, the people in a consensual relationship would have borne hardship had no obligations been imposed upon them as per some Acts. Furthermore, various statutes have implications for the live-in relationship, by way of judicial interpretation, in the absence of any specific laws, such as Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, Cr.P.C., etc. Hence the judicial interpretation is that no person should be allowed to walk in and walk out on any other person with whom they have cohabited for an extended period in a relationship in nature of marriage.
However, merely because the live-in relationship can be read into with the help of the other statutes does not necessitate the absence of specific law to regulate it. There comes the point when there may be conflicting judgments of the courts on issues pari-materia, such as maintenance, pension, children born thereof, and other miscellaneous matters. Hence it becomes effectively sine qua non to have laws dealing mainly on matters which have gained eminence in the society, such as live-in relationships. More so because the function of the Court is to interpret the laws and not to legislate. The graphical representation of the data in various high courts where there are more cases is directly linked with the change in the lifestyle dynamics in the metro cities.
Moreover, the definition as provided by the Protection of Women from Domestic Violence Act, 2005 is of minimal scope. Nor can it deal with matters under consideration effectively. Therefore, the legislature ought to draw out a bill to effectively address live-in relationships. Any such bill must consider the implications upon the women and the children, for they are more likely to be abused.
Bibliography
Abaranji, P. S. (2021). Stigmatising the Taboo against Pre-Marital Sex and Live in Relationships in India: An Analysis of S. Khushboo v. Kaniammal & Anr. Supremo Amicus, 25, 148. (In English)
Abhang, S. (2014). Judicial approach to “live-in-relationship” in India-its impact on other related statutes. J Human Soci Sci, 19. (In English)
Acharya, K., & Udgata, S. (2019). Live-In-Relationships in India and Their Impact-A Sociological Study. Available at SSRN 3451288. (In English)
Agrawal, A. (2012). Law and ‘live-in’ relationships in India. Economic and Political Weekly. (In English)
Chatterjee, S. (2020). Legal Recognition of Live-In Relationship: An Emerging Trend of Social Transformation in India. Indian JL & Just., 11, 1. (In English)
Choudhary, A. A. (2015). Live-in Relationships Now Acceptable Norm in Society: SC. The Times of India. (In English)
Naik, K., & Maley, D. G. (2017). Legal Recognition of Live-In Relationship and Its Challenges to the Institution of Marriage. Indian Journal of Law and Human Behavior, 3(1). (In English)
Narayan, C. L., Narayan, M., & Deepanshu, M. (2021). Live-In Relationships in India—Legal and Psychological Implications. Journal of Psychosexual Health, 3(1), 18-23. (In English)
Shreya, S. (2017). A Socio-Legal Study of Live in Relationships and Its Impact on the Institution of Marriage. Supremo Amicus, 2, 360. (In English)
Tripathy, B., & Misra, V. N. LIVE IN RELATIONSHIPS AND ITS IMPACT ON INDIAN TRADITIONAL SOCIETY: A CRITICAL SOCIO-LEGAL STUDY. (In English)
Footnotes
[1]
საპროცესო თანამონაწილეობის პრობლემა საქართველოს სამოქალაქო საპროცესო სამართალში
Get PDFThe paper discusses such an important institution of Georgian civil procedural law as procedural complicity. In particular, the legal grounds for co-participation in civil proceedings, such as: 1) the subject matter of the claim, 2) the common right and 3) the basis of the claim. We considered it necessary to discuss the above preconditions in order to avoid mistakes in resolving the issue of involving the parties (plaintiffs) and the parties (parties) participating in the proceedings. Making this mistake, in turn, can lead not only to a timely decision on the case, but also, most importantly, the ability to make an objective decision. As a result of the analysis and comparative study of the case law of Georgia, as well as the legislation of foreign countries, including continental and common law states, the issue of the need to make changes in the Georgian Civil Procedure Law regarding the institution of complicity was identified
ადამიანის უფლებათა ევროპული კონვენციის გამოყენება საერთაშორისო კონფლიქტის დროს
Get PDFInternational law is not a panacea, and it is not always capable of ensuring international peace, as a result of which there are multiple international conflicts coexisting in current geopolitics. Armed conflicts are the source of a bleak reality that primarily affects the population living in conflict zones. During the war, those peoples rights are frequently violated. It makes it necessary for international law to operate in a way that reduces the possibility of human rights violations. The implementation of one of the instruments of international law, the European Convention on Human Rights, during international armed conflicts is examined in the following article. The European Convention on Human Rights is particularly relevant today, because on its basis numerous states international legal responsibility has arisen before the European Court of Human Rights. For now, as far as such a large-scale armed conflict is in progress in Europe, the role of the European Convention on Human Rights is immeasurable when it comes to protecting human rights in Ukraine. Application of the convention in this and the other international armed conflicts, as well as the problems and challenges of application of the convention in those situations will be discussed in the following article
საკონტაქტო ინფორმაციის მნიშვნელობა სასესხო ურთიერთობისას
Get PDFThe Civil Code of Georgia offers norms regulating credit relations. In Georgia, the loan relationship is actively used in the relationship between the customer and the credit organization. Many disorders occur in this process of this relationship. However, the loan relationship is characterized by many features, so it is important to correctly define what ethical obligations any credit organization may have to the consumer and how it should be regulated at the legislative level. While talking about ethical obligations, we should first of all consider the „Code of Ethics for Credit Removal by Financial Institutions”approved by the President of the National Bank of Georgia N 14/04, which is the latest legislative change in the norms governing credit relations. One of the most important components of a loan relationship is the proper use of contact information by financial institutions. Failure to use this information in practice could result in significant harm to the borrower. This article will discuss the most recent legislative changes in the regulatory norms of the loan relationship and it will discuss in detail what problem can be solved by the use of correct methods of communication by financial institutions. However, the importance of correctly identifying contact information in a loan relationship is considered as a problem and ways to solve it will be suggested. საქართველოს სამოქალაქო კოდექსი გვთავაზობს სასესხო ურთიერთობის მომწესრიგებელ ნორმებს. საქართველოში სასესხოურთიერთობა აქტიურად გამოიყენება მომხმარებელსა და საკრედიტო ორგანიზაციას შორის ურთიერთობისას. ამ ურთიერთობის პროცესში ბევრ დარღვევას აქვს ადგილი. ამასთან, სასესხო ურთიერთობა ბევრი თავისებურებით ხასიათდება, შესაბამისად, მნიშვნელოვანია სწორად განისაზღვროს – რა ეთიკური ვალდებულებები შეიძლება გააჩნდეს ამა თუ იმ საკრედიტო ორგანიზაციას მომხმარებლის წინაშე და საკანონმდებლო დონეზე როგორ უნდა იქნეს იგი მოწესრიგებული. ეთიკურ ვალდებულებებზე საუბრისას უნდა განვიხილოთ, უპირველეს ყოვლისა, საქართველოს ეროვნული ბანკის პრეზიდენტის N14/04 ბრძანებით დამტკიცებული „ფინანსური ორგანიზაციების მიერ კრედიტის ამოღებასთან დაკავშირებული ეთიკის კოდექსი“, რომელიც უახლოეს საკანონმდებლო ცვლილებას წარმოადგენს სასესხო ურთიერთობების მარეგულირებელ ნორმებში, რაც წინამდებარე სტატიის ანალიზისა და განხილვის მთავარი საგანია. სასესხო ურთიერთობის ერთ-ერთი მნიშვნელოვანი კომპონენტია საკონტაქტო ინფორმაციის სწორად გამოყენება ფინანსური ორგანიზაციების მხრიდან. პრაქტიკაში ამ ინფორმაციის გამოუყენებლობამ შესაძლოა მსესხებლისათვის მნიშვნელოვან ზიანამდემიგვიყვანოს. წინამდებარე სტატიაში განხილულ იქნება უახლოესი საკანონმდებლო ცვლილებები სასესხო ურთიერთობის მარეგულირებელ ნორმებში და იგი დეტალურად განიხილავს – რა პრობლემის მოგვარებას შეიძლება შეუწყოს ხელი ფინანსური ორგანიზაციების მხრიდან კომუნიკაციის სწორი მეთოდების გამოყენებამ. ამასთან, პრობლემის სახით განიხილება საკონტაქტო ინფორმაციის სწორად განსაზღვრის მნიშვნელობა სასესხო ურთიერთობისას და შემოთავაზებულ იქნება მისი გადაჭრის გზები
The Legal Treatment Problem of French and Georgian Nationals Who Joined the Islamic in Iraq and/or Syria
Get PDFWith the weakening of the Islamic State, many French and Georgians who had joined the organization, were arrested by the Syrian Democratic Forces (SDF) in Syria and by the Iraqi authorities. These people have been placed either in detention in Iraq or in camps in Syria with catastrophic health and security conditions. Even if France and Georgia are unambiguously reluctant to repatriate their nationals who have joined Daesh in order to try them on their territory, it is appropriate to ask whether this policy is consistent with international law. This article aims to provide a legal response to the political and security issues surrounding the repatriation and trial of French and Georgian nationals who have joined Daesh. Firstly, the legal dilemma of the trial of adults who joined Daesh will be studied in the light of international law and the domestic law of Iraq, France and Georgia, including the thorny issue of the application of the death penalty in Iraq and the recognition of crimes against humanity. Secondly, the legal possibility of repatriation of French and Georgian minors interned in camps in northern Syria will be analyzed.
Keywords: Daesh, Judging terrorism, Iraqi justice, Child in Syria
Introduction
In recent years, a significant number of French and Georgian nationals have voluntarily left their home countries to fight alongside Islamist terrorists affiliated with the Islamic State, causing chaos in the Levant region and posing a threat to Europe. As this entity has weakened and many of its members have been apprehended, the issue arises regarding the jurisdiction for the trial of these French and Georgian nationals.
It is important to first recall that the Islamic State, also known as Daesh, is a politico-military terrorist organization that established a caliphate in Iraq and Syria from 2014 to 2019. The alliance between Al-Qaeda in Iraq and Ba\u27athist leaders ousted from the Iraqi government led to the establishment of a formidable totalitarian system. This organization is accused by the United Nations, the Arab League, the United States, and the European Union of war crimes, crimes against humanity, ethnic cleansing, genocide, as well as the destruction of millennia-old archaeological sites.
This entity recruited foreigners from more than 80 states, including a significant number of Europeans. The French constituted one of the largest groups of European recruits within the ranks of the Islamic State, with approximately 1,300 nationals[1]. Regarding Georgia, it is estimated that between 100 to 300[2] Georgians joined Daesh, predominantly from the Kists of Pankisi, and to a lesser extent, from the regions of Adjara and Guria[3]. While this number may seem low compared to France, it is crucial to note that Georgia has a population of fewer than four million inhabitants[4], representing approximately 7.5 per thousand inhabitants who joined Daesh compared to 1.9 per thousand on the French side.
Due to the operations of the international coalition and various factions opposing Daesh, the Islamic State lost numerous territories between 2014 and 2019. Thousands of people living in these previously Daesh-controlled territories were placed in camps in Syrian Kurdistan, controlled by the Syrian Democratic Forces (SDF), a group mainly composed of Kurds[5] and allied with the international coalition against the Islamic State. In 2019, it was estimated that around 12,000 foreigners, including 4,000 women and 8,000 children from 30 to 40 different countries, were interned in camps in northeast Syria[6]. The situation in these camps has been described as "apocalyptic" by the International Committee of the Red Cross (ICRC)[7].
A number of individuals, particularly men suspected of belonging to the Islamic State, have been transferred from northern Syria to Iraq for trial. Between May 26 and June 3, 2019, eleven French nationals were sentenced to death by hanging by the Central Criminal Court of Baghdad on charges of belonging to Daesh and acts of terrorism[8]. Many other French nationals and potential Georgians also risk being transferred and judged in Iraq, where they face the death penalty.
European states, including France[9] and Georgia[10], remain reluctant to repatriate their nationals. This status quo leaves children and many adults in the hands of the SDF in camps in northeast Syria under conditions seriously endangering their lives. Moreover, a significant number of transfers of European nationals from Syrian camps to Iraq are carried out to be judged under Iraqi law, raising serious questions about the respect for their fundamental rights. To address these legal infringements, specialized jurisdictions could be established to judge the crimes committed by Daesh members. It could also be considered to transfer and repatriate French and Georgian nationals to be tried in their home countries.
Given these sensitive political and social circumstances, it is essential to provide a legal perspective to address this situation, which constitutes a ticking time bomb for European countries such as France and Georgia. This article aims to offer a concise legal solution to this issue. Its purpose is not to doctrinally develop legal concepts, further exploration of which can be found in the provided bibliography.
1. UNDERMINING INTERNATIONAL LAW THROUGH THE IRAQI JUDGMENT OF ISIS MEMBERS
1.1. Questionable Iraqi Territorial Jurisdiction and Violation of the Non-Refoulement Principle
French policy has established the principle[11] that its nationals would be tried not in France but in Iraq, based on Iraq\u27s territorial jurisdiction to adjudicate crimes committed on its soil. This French stance, likely endorsed by Georgia as well, is legally contentious. According to lawyers consulted by the National Consultative Commission on Human Rights (CNCDH), more than half of French nationals may never have set foot on Iraqi territory[12] (a situation likely applicable to Georgian nationals). Thus, if proven, this fact would render Iraq\u27s territorial jurisdiction inadmissible[13].
Moreover, there seems to be no legal basis justifying the transfer of French and Georgian nationals from Syria to Iraq[14]. This transfer, politically authorized by France and probably tolerated by Georgia, contravenes the principle of non-refoulement[15] to a country practicing torture and the death penalty. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[16], ratified by both France and Georgia, states in Article 3 that “no State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This approach has been consistently upheld since 1989 by the European Court of Human Rights, recognized by both France and Georgia, which interprets Article 3, particularly concerning individuals at risk of being sent to a state where they could face the death penalty[17].
It is confirmed that confessions of ISIS affiliation are obtained through torture[18], a fact corroborated by the testimony of French nationals sentenced to death[19]. Thus, the practice of torture renders the consensual transfers of French and Georgian nationals from Syria to Iraq illegal, subjecting them to trials raising concerns about their fairness.
1.2. Lack of Fair Trials in Iraq
On May 29, 2019, Mr. Jean-Yves Le Drian, the Minister for Europe and Foreign Affairs, described as "fair"[20] the trials that led to the death sentences of eleven French nationals. However, numerous elements contradict the French minister\u27s position.
Firstly, the right to a fair trial is a fundamental right enshrined in various international texts, such as the Universal Declaration of Human Rights[21] (Article 10) and the European Convention on Human Rights[22] (Article 6), both ratified by Georgia and France. The International Covenant on Civil and Political Rights[23] (Article 14), ratified by Georgia, France, and Iraq, is also a binding instrument protecting this right.
The right to a fair trial is based on various principles such as the presumption of innocence, the impartiality and independence of judges, and the conduct of a adversarial hearing[24]. This right also guarantees respect for the right to defense, including access to a lawyer at all stages of the proceedings[25].
Concerning the Iraqi trials of ISIS members, numerous elements indicate that access to the right to defense is restricted, with expedited trials lacking the presentation of all defense elements and arguments[26].
Defense lawyers face numerous threats and are often assigned under coercion. They are present only at the trial, with no opportunity to consult with their clients or access their case file, except a few minutes before the hearing, hindering adequate defense preparation[27]. They can only plead briefly, if at all[28].
Accused individuals are deprived of legal representation during arrest and investigation, have limited speaking rights, and face significant challenges due to their lack of knowledge of Arabic.
Judges lack independence, living in fear of reprisals if the verdict is deemed inadequate by the population[29].
Lack of prior instructions results in sentences based on confessions, generally obtained through torture[30], rather than corroborating evidence. These trials take place in the absence of victims and without any supporting testimonies from the prosecution.
All these elements indicate the lack of a fair trial in Iraq, a deficiency highlighted by the third Universal Periodic Review (UPR) in November 2019[31], which raised concerns about violations of the right to a fair trial in Iraq and emphasized the need to strengthen the independence and impartiality of the judiciary. Additionally, according to the UN High Commissioner for Human Rights, Michelle Bachelet, over 150 men and women have been sentenced to death in Iraq under the anti-terrorism law “following trials which have not afforded adequate due process guarantees”[32]. Numerous reports from NGOs[33], the UN, and lawyers[34] document human rights violations and violations of the right to a fair trial during trials for affiliation with ISIS.
All these elements demonstrate that trials conducted on the grounds of ISIS affiliation in Iraq are unfair, thus violating international law. France and Georgia should therefore make every effort to ensure that their nationals, for whom they are responsible, are treated in accordance with international law if accused of serious crimes in another country[35], including repatriating them for trial in their own territory.
1.3. Non-Individualized Iraqi Judgment and Lack of Recognition of Crimes against Humanity
The Iraqi anti-terrorism law of 2005[36] classifies as terrorists anyone who belonged to a terrorist organization, regardless of the individual\u27s role or position. The law, in its Article 2, paragraph 3, considers “The following acts are considered acts of terrorism [...] Anyone who organized, chaired or participated in an armed terrorist gang that practices and plans for terrorism and also contributes and participates in this act.”[37]. Thus, both an ISIS fighter and a doctor who treated ISIS members could be sentenced to death under this anti-terrorism law[38]. Therefore, despite claims of non-participation in combat, several French nationals have been sentenced to death based on this anti-terrorism law. The vagueness of the law means that individuals are not judged for their specific crimes[39], violating the principle of individualization of sentences.
Furthermore, the 2005 law contains no reference to crimes against humanity. It appears that judges in Iraqi counter-terrorism consider genocide and terrorism as a single crime[40]. During an interview with Human Rights Watch, Iraqi judges reportedly stated, "Genocide and terrorism are the same crime, so why would we need a separate charge for genocide?"[41] This omission and conflation prevent the establishment of the legal truth of the facts. Indeed, numerous UN investigation reports have demonstrated that many crimes against humanity, including genocides, have been committed by ISIS in Iraq and Syria[42]. Reducing judicial proceedings to mere affiliation with a terrorist group obscures the gravity of crimes against humanity committed by ISIS. This legal omission hinders victims\u27 access to the right to reparations for damages suffered and the right to truth regarding the blatant human rights violations committed[43].
Given this observation, referral to the French justice system, competent in both terrorism acts and crimes against humanity, should be favored, as opposed to the Iraqi judiciary, which lacks legal basis and will to judge crimes against humanity and genocide[44]. This legal reasoning could also be applied to potential Georgians judged in Iraq, as Georgia also has legal provisions to judge crimes against humanity[45] and terrorism[46].
2. THE ISSUE OF THE DEATH PENALTY IN IRAQ IN THE CASE OF FRENCH AND GEORGIAN CONVICTS
2.1. A Death Penalty Imposed "by Proxy"
As of today, Iraq is one of the five countries in the world that executes the highest number of death-row convicts[47], with the majority facing charges related to terrorism[48]. While French nationals sentenced to death have not been executed so far, and French authorities have requested their non-execution, there is no guarantee that Iraqi authorities will comply with these requests. In fact, they have denied any such agreement with France on this matter[49]. Additionally, the Iraqi government lacks the authority to modify, confirm, or annul sentences pronounced in the courts; these prerogatives lie exclusively within the jurisdiction of the Iraqi Court of Cassation[50], which has not yet rendered its verdict concerning the eleven French nationals sentenced to death.
In light of the imminent risk of executions of French nationals, France\u27s hesitancy in taking effective measures to prevent executions or repatriate its citizens appears paradoxical and illegal in view of its international commitments on this issue. Since the abolition of the death penalty in 1981, France has unambiguously expressed its commitment to this prohibition within international institutions. It has pledged, on various occasions, to provide technical assistance to Iraq for the abolition of the death penalty[51]. France has ratified numerous international and regional binding commitments prohibiting the death penalty[52]. This prohibition must be understood "universally, including for their nationals abroad,"[53] according to Agnès Callamard, the Special Rapporteur of the Human Rights Council on extrajudicial, summary, or arbitrary executions. It is noteworthy that France does not comply with any extradition requests when there is a risk of the death penalty, regardless of the person\u27s nationality, in accordance with the jurisprudence of the European Court of Human Rights (ECHR)[54].
It appears paradoxical and illegal for France to accept, or even assist in, the transfer[55] of its nationals from Syria to Iraq, where they will face the death penalty. According to Agnès Callamard, a UN Special Rapporteur, strongly abolitionist states give the impression of imposing “the death penalty by proxy, subcontracting its use fort some of their nationals who are deemed to be unworthy of equal human rights protection.”[56]
It should be noted that even though Georgia is not at the forefront of the international fight against the death penalty, the analysis concerning France can also be applied to Georgia since the country abolished the death penalty on November 11, 1997, and signed various binding international and regional treaties to that effect[57].
In the face of these death sentences, France and Georgia should consider transferring their nationals to remain in accordance with the international treaties they have ratified.
2.2. Possible Transfer of French and Georgian Detainees and Death Row Convicts to Their Home Countries
Contrary to what the facts might indicate, Iraq is not opposed to the transfer of foreign nationals. Indeed, during the Universal Periodic Review (UPR) in November 2019, Iraq accepted Georgia\u27s recommendation to "strengthen bilateral and multilateral judicial cooperation in criminal matters, particularly with agreements on the issue of the transfer of detainees, ensuring a balance between combating transnational crime and humanitarian goals."[58]
The transfer of detainees[59] is a procedure allowing a foreign national to serve their prison sentence, for which they were convicted abroad, in their home country. Its implementation is possible under various conditions. Firstly, both states must have ratified a bilateral or multilateral transfer convention. Alternatively, an ad hoc agreement between the two states may be sufficient. Moreover, for the transfer to take place, the conviction must result from a final decision of the foreign court or no appeal has been filed. Thus, without an agreement between the two parties and without a final decision, it will be difficult to transfer the French and potential Georgian individuals detained in Iraq. The transfer decision is a political matter and not a judicial one, as it is decided by the Minister of Justice. However, the French and Georgian governments are still very reluctant to transfer and repatriate their nationals due to unfavorable public opinion[60]. This is despite recommendations published by the National Consultative Commission on Human Rights (CNCDH)[61] in 2020 urging France to repatriate its nationals through transfers, including those sentenced to death in Iraq or facing this penalty.
It should be noted that in the case of transfer, the sentence to be executed is, in principle, not modifiable. However, since the death penalty is prohibited in France and Georgia, it would be up to national courts to replace the foreign sentence with a domestic sentence corresponding to the initial penalty. This transfer would thus allow France and Georgia not to impose the death penalty "by proxy" on their nationals.
3. POSSIBLE SOLUTIONS FOR JUDGING ISIS MEMBERS IN ACCORDANCE WITH INTERNATIONAL LAW
3.1. The Fleeting Idea of a Specialized Jurisdiction
Members of ISIS have committed almost all the crimes against humanity listed in the Rome Statute of the International Criminal Court (ICC)[62]. Therefore, it is essential for victims, their families, as well as for truth and memory, to combat impunity for these crimes. For this purpose, various options for the international trial of these crimes have been considered.
The ICC could be recognized as having jurisdiction to prosecute individuals accused of crimes against humanity, war crimes, and genocide. However, neither Syria nor Iraq has ratified the Rome Statute. The ICC would, however, have jurisdiction to prosecute nationals of states that have ratified the Rome Statute, such as France and Georgia. Nevertheless, the Court generally only pursues high-ranking officials and has jurisdiction only to judge serious international crimes, such as crimes against humanity, war crimes, and genocide. The ICC appears limited in judging all ISIS members, as these charges do not apply to all individuals who joined the Islamic State.
The possibility of creating a specialized international tribunal has also been discussed, similar to several international criminal courts created in the past to judge war crimes, crimes against humanity, genocide, and even terrorism.
In this case, it would be more of a "hybrid"[63] jurisdiction, with national judges sitting to judge their nationals and international judges to judge foreign nationals and support local judges. This idea, difficult to implement financially, poses a problem in terms of location. It would be necessary to establish this jurisdiction as close as possible to the victims and witnesses, in the Levant region, which is still very unstable. Moreover, there is no international consensus on a precise definition of terrorism[64], posing a real issue regarding the legal qualification of facts for judgment. Furthermore, the establishment of such a jurisdiction would require several years, which is a challenge given the instability of the region, the living conditions of detainees in Iraq, and the families in camps in Syria.
At present, these options seem less likely to be considered by states, making their establishment in the future unlikely. European countries have leaned more towards the principle of universal jurisdiction and active personal jurisdiction of foreign nationals who have committed serious international crimes[65].
3.2. The Competence of States to Judge Their Nationals who Joined ISIS
Various legal tools allow France and Georgia to judge on their own territory their nationals who joined ISIS. These tools are applicable to both detainees in Iraq and those interned in camps in Syria.
Firstly, a portion of the offenses started on French or Georgian soil, making the territorial jurisdiction of France[66] and Georgia[67] applicable to their nationals abroad.
Additionally, French, Georgian, and international law provide for active personal jurisdiction[68], allowing French and Georgian courts to address crimes committed by their nationals abroad. Moreover, French and Georgian laws stipulate that their courts have full jurisdiction to judge acts of terrorism committed by their nationals abroad[69]. Furthermore, UN Security Council resolutions related to counterterrorism urge member states to bring to justice anyone suspected of committing or financing acts of terrorism[70]. The prosecution of French and Georgian nationals in their home countries would ensure "long-term justice"[71] by establishing crimina
ასაკი, როგორც მინიმალური სისხლისსამართლებრივი პასუხისმგებლობის საფუძველი (საერთაშორისო და ეროვნული კანონმდებლობის ანალიზი)
Get PDFThe topic of the scientific work is relevant both in international and national legislation. The minimum age of criminal liability is the limit from which the state begins to implement its repressive measures against minors. Therefore, it is important to regulate the minimum age in such a way that it is in harmony with the bio-psycho-social condition of the minor and to achieve the goals of criminal law, in terms of analyzing the committed crime, and at the same time, the main goal of punishment in juvenile justice, such as resocialization-rehabilitation, is achievable. The article analyzes from which age the actions committed in the person of a person are analyzed, which should be directly related to the establishment of the minimum age limit. In addition, international approaches are compared with national legislation. It is worth noting that in the reality of Georgia, such an important institution as referral has been implemented, which does not leave minors under the minimum age, who have committed deviant actions, unresponsive. In the paper, the issues determining the criminal liability of a minor are discussed logically, after which the national legislation and international approaches are discussed. It is shown how important it is to correctly perceive/analyze the mentioned issue for the development of juvenile justice, and as a conclu- sion, the conformity of national approaches with internationally recognized best practice is shown, especially with the existence of such an important institution as – referral, thus, on the one hand, the state does not leave devi- ant cases without a response. The behavior, on the other hand, is prevented in the future by resocialization-rehabilitation of the minor.
Keywords: age - juvenile - responsibility - resocialization
Introduction
Juvenile Justice refers to justice of child. The word "justice" is often interpreted as law. Accordingly, juvenile justice is translated as justice of child.[1] Juvenile justice was established in the United States of America and its purpose was to protect minors who have fallen into the orbit of justice;[2] It aimed to offer juvenile justice tailored to individual needs. The main task was to guide minors with different standards from adults.[3] In international dictionaries, "juvenile justice" is defined as a set of laws, policies and procedures related to persons who have reached the age of criminal responsibility, who are subject to criminal proceedings, legislation that protects their interests and rights granted by law.[4]
In juvenile justice, the most important issue is the minimum age of criminal responsibility (MACR), from which the state\u27s repressive measures against a person begin. The Convention on the Rights of the Child, adopted by the United Nations General Assembly, emphasizes the existence of special guarantees for children, including the age of criminal responsibility, which should be determined in such a way that it takes into account the emotional, mental and intellectual immaturity of adolescents.[5] States should take into account the differences between minors and adults, that juvenile justice is focused on the resocialization of children and not on their punishment and revenge, since minors are a vulnerable category due to their physical and psychological, emotional and mental development.[6]
The minimum age of criminal responsibility is a subject of debate, as it is both sensitive and prone to misinterpretation, simplification and myth. In particular, when defining sensitivity, they refer to the statistics of crimes committed by young children, which gives an adequate answer regarding the minimum age of criminal responsibility; The misinterpretation is understood in such a way that it is important to correctly understand the essence of juvenile justice, that it is not focused on punishment and diversion measures play a priority role in it; The issue of simplification is understood as a measure of age-related responsibility, according to which a high or low minimum age of criminal responsibility determines what type of responsibility should be imposed on a minor.
Myth - The minimum age of criminal responsibility is the age limit in society where juveniles should know the difference between right and wrong.[7] The establishment of a minimum age of responsibility for a minor is related to the historical and cultural context. The main thing is whether the child\u27s level of development allows to understand the criminal responsibility for his antisocial behavior.[8] Children and adolescents differ from adults in terms of their development due to their age, therefore the existing justice towards them should be adapted to rehabilitation-resocialization.[9] It has long been recognized that young children should not be held accountable for their actions before the law.[10] Juvenile justice is based on different approaches from adult justice, because a child, due to his physical and mental maturity, needs special protection and care.[11] When establishing the minimum age of criminal responsibility, all fundamental issues established by the Committee on Children\u27s Rights should be taken into account, such as, first of all, the principle of prioritizing the best interest of the child, according to which traditional repressive measures should be replaced by restorative justice and rehabilitation goals;[12] Child welfare goals are most likely to be achieved if the minimum age of criminal responsibility is reconciled with ways to improve therapeutic and practical services.[13]
The aim of the paper is to show how important it is to establish a minimum age for minors, from which the state starts to carry out repressive measures - in the form of criminal law institutions. First of all, the question of what the minimum age is related to, on the basis of which it is determined, needs to be clarified. After analyzing the mentioned issue, the legislation of Georgia will be discussed and its compliance with the internationally accepted practice will be shown. Moreover, such an innovative issue as referral will be analyzed, which is a very important issue to show the non-abandonment beyond the response of children\u27s deviant behaviors. In order to study and analyze all the mentioned issues, the method of analysis and comparison, the method of logical reasoning and thinking will be used.
1. Age as a physiological-psychological issue - determinant of criminal responsibility
"A person as a person alone, i.e. Existence as an anthropological-biological phenomenon is not enough to hold it responsible for its own behavior. For this, it is necessary for a person to rise to the level of a person, which implies the "I" of pure will and thinking. These factors are the main moments of a person\u27s relationship with the surrounding world in order to ask him to answer for his behavior\u27\u27.[14] Criminal responsibility is much more than the difference between good and bad. It involves a unity of interdependent mental faculties. Many complex, unified issues.[15]
Determining the relationship between age and crime is the most important relationship in criminology. [16] In criminology, the relationship between crime and age is known as the "age-crime curve", according to which crime increases in early adolescence, around the age of 14, peaks in the 20s, and then declines.[17] In order to impose criminal liability on a teenager, it is necessary that his neurological, behavioral, emotional and moral issues are properly developed.[18]
Scientifically, through brain imaging, it has been proven that the areas of the brain that are responsible for decision-making do not mature until adulthood; Areas of the brain responsible for decision-making, planning, social relationships, and inhibition of risky behaviors are the last to mature.[19]The immaturity of adolescents\u27 neurodevelopment leads to their tendency to commit antisocial behaviors, especially if their peers are prone to crimes, since at this time adolescents try to commit "pleasant" behaviors for their peers.[20]When determining the minimum age of criminal responsibility, they consider that the psychological and moral development of a teenager should be taken into account at this time.[21]
Adolescence in humans is defined as a psychologically and socially transitional period between childhood and adulthood, as the adolescent\u27s body undergoes dramatic changes at the onset of puberty.[22]
Those areas of the human brain that are responsible for the cognitive part continue to develop even at the age of 18. Science confirms that neural development remains incomplete until early adulthood. Developmental immaturity affects a range of cognitive thinking issues and is characterized by impulsiveness, acting rationally without analyzing issues.[23]
Children\u27s behavior is influenced by the anatomy and biochemistry of the developing brain, which affects a person\u27s ability to perceive risk, control impulses, analyze the consequences of actions, and control emotions. The parts of the brain involved in action analysis, impulse control, and foresight develop in the twenties rather than the teenage years, causing teens to be overly emotional, prone to risky behaviors, and less able to foresee the future. Based on the human brain, decisions made during adolescence are related to impulsivity, emotions and aggression. [24]
Studies have shown that the understanding of the morality of "law and order" is not reached until the mid-teens, logical thinking and problem-solving skills are intensively developed between the ages of 11 and 15, and children between the ages of 10 and 13 are particularly vulnerable to peer pressure.[25]
"The ability of minors to logically analyze their actions, autonomy, resistance to pressure from others, the ability to perceive and feel the consequences of crime and antisocial actions is underdeveloped, which contributes to the tendency to make decisions harmful to themselves and others."[26]
According to international standards, the determination of the minimum age is emotional, mental and intellectual maturity, according to which medical conclusions and analysis of psycho-social condition are important, not society\u27s evaluations and tradition.[27]
2.The relevant age for the criminal responsibility of minors as determined by national legislation
According to the legislation of Georgia, the determining age of responsibility of minors should be considered in several directions. In particular, the age of criminal responsibility of minors and the age from which without criminal responsibility, through referral - the state does not leave adolescents with difficult behavior without a response, which is aimed at their future resocialization-rehabilitation. Age-differentiated assessment involves some risk of subjectivity, but it is important to take into account it in order to tailor it to the individual needs of children as much as possible.[28]
According to the "Juvenile Justice Code" of the Law of Georgia, what age category of children are included in juvenile justice is defined in the first part of Article 2 of the same Code, according to which: "This Code is used for minors in conflict with the law, minor victims and minors who are interrogated as minors/witnesses while participating in the justice process. The norms established by Articles 38-48 of this Code (except Article 42, Part 1, Sub-Clause "G" and Article 46) also apply to a person between the ages of 18 and 21, if there is a reasonable assumption that he has committed an offense under the Criminal Code of Georgia Considered a less serious crime or a serious crime."[29] According to the first part of Article 3 of the same law: "Minor - a minor victim under the age of 18, a minor witness, a minor in conflict with the law." For the purposes of administrative responsibility, a person who has turned 16 years of age at the time of committing an administrative offense, but has not yet turned 18, is considered a minor, and for the purposes of criminal responsibility - a person who has turned 14 years of age at the time of committing a crime, but has not yet turned 18.“[30] As for the minor in conflict with the law, it means: "a person under the age of 18, against whom: a) there is a well-founded assumption that he has committed a crime stipulated by the Criminal Code of Georgia; b) an administrative offense protocol has been drawn up, according to which he has committed offenses under Articles 45, 451 and 1002, Article 116, Parts 3, 5, 6, 8 and 9 of the Administrative Offenses Code of Georgia, Article 121, Part 4, Article 123, Part 4, Article 150, Part 22, Article 1533, Part 2, Article 1536, Part 2, Articles 1552, 157 and 166, Administrative offense provided for by Article 171, Part 3, Article 173, Article 1741, Parts 3 and 4, Article 17415, Part 4, Articles 1752, 1771 and 178, and Article 1811, Part 2 ; c) A guilty verdict or a decision to impose an administrative fine for the administrative offense provided for in subsection "b" of this section has been issued." The Law of Georgia "Children\u27s Rights Code" distinguishes between a child and an adolescent, namely: "Child - a minor under 18 years of age; Adolescent - from 10 to 18 years old".[31]
The age of criminal responsibility of a minor was regulated differently from the present situation by the Code of Criminal Procedure of Georgia, in particular, the age of a minor and a minor differed from each other, a minor was a person who had not reached the age of 18, and a minor was a person who had not reached the age of 14.[32] On May 23, 2007, a change was made in the criminal justice process of Georgia, and the age of responsibility in relation to a number of issues was determined from 12 years old.[33] Thus, in the Georgian reality, the age of responsibility of a minor in relation to a number of articles started from 12 years, although mostly from 14 years. This kind of practice is not allowed based on the reasoning developed above, since imposing criminal responsibility on a 12-year-old child is irrelevant to the goals of criminal law. Fortunately, according to the current national legislation, the beginning of the minimum criminal responsibility of a minor is 14 years old, which, based on the reasoning developed above, in particular, in terms of the development of the adolescent\u27s brain, how he perceives the behaviors he commits, in terms of analyzing the actions he commits, is in full agreement with his psychological-physiological with development.
3. Age as a factor excluding the criminal liability of minors and appropriate for referral
In addition to the minimum age of criminal responsibility for minors in Georgia, there is a rule of referral of minors, which is an innovative issue and is important in the sense that the state does not leave the age category of adolescents who are not 14 years old without a response, although they are characterized by difficult behavior. The mentioned issue was regulated by the Resolution No. 681 of the Government of Georgia of December 31, 2019, thus approving the rule of referral of minors, the purpose of which is socialization, resocialization, rehabilitation, crime prevention of minors with complex behavior through an institutional and complex approach.[34] The referral mechanism provides an opportunity to be redirected by the prosecutor\u27s office to the referral center of the Agency for Crime Prevention, Non-custodial Sentences and Probation: "a) a minor between the ages of 7 and 14 with difficult behavior, against whom the commission of an act provided for by the private part of the Penal Code of Georgia is confirmed by the standard of reasonable suspicion; b) 14 to 18-year-old juvenile with difficult behavior, against whom the commission of a crime is confirmed by the standard of reasonable suspicion, but he was not diverted or charged; c) A minor between 14 and 18 years of age, whose commission of a crime has not been proven, but whose actions show complex behavior. "A minor between the ages of 14 and 18, against whom diversion procedures have been initiated or a decision has been issued on the accusation of a person, is not subject to redirection to the referral center."[35] The referral center was launched on January 1 of the 2020 years,[36] which actively carries out the duties assigned to him.[37]
For the purpose of referring minors, an adolescent aged between 7 and 18 is considered a minor.[38] Criminal liability cannot be imposed, however, the reaction starts from 7 years, namely: "for those minors aged 7 to 14 years, in relation to whom the commission of an act provided for by the private part of the Criminal Code of Georgia is confirmed by the standard of well-founded assumption by the competent agencies".[39]
4. Experience of foreign countries in determining the age of criminal responsibility.
According to international documents: "For the purposes of the Convention, every person is considered to be a person before reaching the age of 18 years, unless under the law applicable to that child, he or she reaches majority earlier." The recommendation states that setting a minimum age of responsibility below 12 years is internationally unacceptable and states should continue to raise the minimum age to a higher age level.[40]
The Convention on the Rights of the Child does not set a minimum age, however, Article 40, Section 3 requires states to set a minimum age and explains what is meant by a minimum age: "below which children are deemed not to be able to violate the criminal law".[41] The mentioned issue is more concretized in the minimum standard rules of the UN on the implementation of juvenile justice, the so-called In the "Beijing Rules", according to the fourth article: "In those legal systems in which the concept of the age of criminal responsibility for minors is accepted, the lower limit of this age should not be established at a very early age, depending on the aspects of emotional, spiritual and intellectual development“.[42]
Regarding the minimum age of criminal responsibility, there is a lot of debate about which should be internationally accepted and which is the most appropriate period for a minor to understand responsibility, however, there is no consensus in this regard, but there is recommendation No. 10 of the Committee on the Rights of the Child, according to which "a minor under 12 Responsibility should be internationally unacceptable.“ [43]
When analyzing the international experience, we cannot ignore such an interesting issue as the approach of a number of states, which sets the age of criminal responsibility based on the maturity of the child. This approach is referred to as "doli incapax" (incapable of committing a crime) as well as the awareness-based approach.[44] "A criminal prosecution against a child will be allowed, but the child can only be found guilty if the prosecution can „rebut the presumption“ that the child was not aware that his actions constituted a serious offence."[45] The main thing is to establish that the child perceives the act committed by him, it is not just teasing and harm, but a serious offense.[46] The countries of the British Commonwealth had and have this approach.[47] The practice of those countries which, in addition to the minimum age of criminal responsibility, so-called By "maturity", the criminal liability of a person below the threshold age for committing a serious crime is terminated, which is unacceptable, since such an unpredictable practice creates a discriminatory practice.[48]
The Committee on the Rights of the Child has expressed its concern about such approaches depending on the awareness of the child and has assessed it as unreliable and unpredictable. Such an approach leads to the criminalization of serious crimes against young children and leaves children without a "protective cloak".[49]
In the UK, the age of responsibility is set at 10, which is alarmingly low, as a child\u27s brain is not yet developed enough to be responsible for a criminal act.[50]
Interestingly, Australian law regarding the age of criminal responsibility of a minor. On the one hand, there is a minimum age, in particular, the imposition of criminal responsibility on a child under the age of 10 is not allowed, and on the other hand, the doctrine of "doli incapax" applies, according to which the criminal responsibility of a minor between the ages of 10 and 14 will be established only if the prosecution proves that A child of this age was aware of his actions. As for the responsibility of a child under the age of 10 - it is not allowed,[51] What is mentioned in the legislation, where it is indicated that the criminal responsibility of a child under the age of 10 is not allowed.[52] „The doctrine of "doli incapax" is important from the point of view that the minor, whose level of development, his mental and intellectual level allows understanding of his criminal act, does not remain without responsibility, at this time, it is quite possible that some 10-year-old children understand a similar act, which they cannot understand 14 A minor of the year.[53] The spread of the said doctrine began around the first half of the seventeenth century, when the criminal responsibility of children under the age of 14 was considered and the criminal responsibility of a child under the age of 14 was viewed with the eyes of criticism.[54] Increasing the age of criminal responsibility from 10 to 14 years was actively discussed, but the draft law was not adopted.[55] The UN Committee on the Rights of the Child has expressed serious concern about such disturbing practices in Australia.[56] Internationally, there was a call by 31 states to increase criminal liability, but nothing has changed so far.[57]
Con