Law and World (E-Journal) / სამართალი და მსოფლიო
Not a member yet
437 research outputs found
Sort by
პირთა ნების თავისუფლების შეზღუდვა მორალური ნორმებით
No full textMoral norms date back centuries. In a specific time and space, morality took a higher place than codified legal norms. The devel- opment of law has led to the fact that today codified acts have a predominant place in legal proceedings, although due to the im- portant place of moral rules in society, the legislator did not deny its importance in the Civil Code of Georgia. On the one hand, taking into account the role of morality in so- ciety and reinforcing its importance with the Civil Code is a posi- tive fact, however, on the other hand, it is important to assess how correct it is to reinforce it in its current form, as well as how much power it gives the court in order to limit the fate of transactions con- cluded within the autonomy of the will of individuals. While the consideration of moral rules should respond to the demands of society, its abstract and unclear content creates the possibility of excessively restricting the freedom of individuals when concluding a contract with the norms of morality unknown to a person. By discussing the selected issue, it becomes possible to analyze and evaluate the challenges and problems in Georgian litigation. The question to be discussed is: is the strengthening of morality a positive factor, or it can negatively affect the fate of the deals made by the autonomy of the will of individuals and limit their freedom.
Keywords: Morality, autonomy of the will of persons, problems
Introduction
Certain transactions cannot be conducted in legal proceedings, therefore, we find them under “impermissible transactions”. The list of such includes immoral transactions made against morality. It is interesting - what is the importance of morality in modern law? Is it possible or not, and what role can it play in transactions concluded as a result of the private autonomy of individuals? What attitudes do we find regarding immoral transactions in court practice and others?
When we talk about morality, it is important to note its non-concrete meaning and the fact that this word is an abstract concept. Since the concept of morality does not have a specific meaning, it is defined in law as a “generally accepted standard of behaviour”. It should be noted that even this definition does not allow for a uniform perception; therefore, practicing lawyers often have to consider various factors and be guided by the features that characterize morality so that the decision made during a dispute is equivalent to justice.
Morality is a phenomenon that existed in society even before the creation of the first positive law. Therefore, the legislator paid attention to it hundreds of years ago and gave it a place in the relations of subjects of private law.
Even in the Roman Empire, one of the criteria for the validity of the contract was moral norms, therefore, the contract should not be against morality.[1] Pacta contra bonos mores is how the Romans referred to transactions made against morals.[2] It is widely known that the French Civil Code first reinforced the concept of immoral transactions among modern codifications. “In particular, in articles 6 and 1133, he strengthened the public order (ordre public) next to bonne moeur (good morals)”.[3]
This does not mean that no norms considered this immoral behaviour contrary to the law and established societal views. In this regard, it is interesting to know what was the criterion of immorality in the history of Georgian law. It should be noted that in ancient Georgian law, in terms of immorality, such an abstract norm as Article 54 of the Civil Code is not fixed. Articles of a more casuistic nature can be found in various legal monuments, where a specific action based on non-compliance with moral laws is considered immoral. For example, Article 1 of the “Law Established by the Catholicos and Dignitary Bishops of Kartli and Abkhazia” (Catholicos’ Law) considers the sale of captives as entirely immoral, against the law, and reprehensible. Also, we find prohibitive norms for setting a very high interest on the loan because it was considered against the law - Articles 92, 93 and 94 of the “Beka-Agbugha Law”, Articles 116, 117, 118, 119 of the “Vakhtang Law Book” and others. Therefore, it is clear that legislators analyzed the “cooperation” of morality and law in ancient Georgian law, and it is not only a result of the reception of European law in modern Georgian private law.
As is known, the strengthening of morality in Article 54 of the Civil Code took place after the separation of Georgia from the Soviet Union. It should be noted that the Code of Civil Law of the SSR of Georgia did not strengthen morality in the abstract character it has in today’s Code. Article 48 of the Civil Law Code of the SSR of Georgia referred only to the invalidity of transactions inconsistent with the law in general and not to public order or moral norms. Accordingly, the invalidity of transactions inconsistent with the norms of morality is still a new achievement for the Civil Code of Georgia; therefore, each natural or legal person must accept, even negative consequences, which follow this norm.
So, it is clear that moral regulations play an essential role in different times and spaces. Based on history, in this regard, the Georgian people “take an advanced place”.
Due to the special role of morality in Georgian society, there was a need to reinforce it in the Civil Code of Georgia, which the legislator ensured in Article 54 of the Civil Code. This action positively changed private law subjects, who were prevented from fulfilling/satisfying the demands arising from the transaction of immoral obligation and immoral content. However, it is necessary to reassess the subsequent processes that followed this action, to analyze the negative results as well as the good ones, and to make a final decision on whether the abstract strengthening of moral rules in Article 54 of the Civil Code represents the pride of Georgian legal development, or it is necessary to refine this norm and make it more suitable in response to the problems that private law subjects have in legal relations.
1. Characteristics of morality
For a judge to correctly resolve the issue and make a relevant decision as to whether a transaction is immoral, they must know the various characteristics inherent in morality. The formation of morality is influenced by various factors such as customs, value and tradition. Indeed, morality is not a one-time phenomenon that is heteronomously and eternally created. It was formed over time. Its change depends on time, along with the moral perceptions that are also changing - what was immoral in the past cannot be fully considered as such today. For example, decades ago in the United States of America, an African American could not have breakfast and do other daily activities with a white person because their behaviour was perceived as immoral, although today, such a perception no longer exists. Moral perceptions cannot be changed instantly, so it can be said that morality is somewhat static.[4] Another characteristic of morality is that often immoral behaviour (except in the case of immoral transactions) is sanctioned by society rather than by relevant structures. All this is important to the practising lawyer, whose case may be connected with morality at any time. In the field of private law, there are transactions with an immoral basis, the victim of which is often a natural person/contractor who does not know that the obligation imposed on them is immoral and the Civil Code - Article 54 of the Civil Code - allows the invalidation of such a transaction. Thus, the judge needs to study the concept of morality to such a level that the party to the transaction in a specific case is freed from the obligation that goes beyond the scope of morality. For example, in one of the cases, the Supreme Court considered one of the provisions of the contract, which provided for the prohibition of pregnancy during the validity period of the labour contract, to be immoral/against morals.[5] In addition, various acts, including Article 21 of the Convention on “Protection of Human Rights and Fundamental Freedoms”, oblige the judge to know the existing moral rules and embody high moral qualities. Therefore, it is clear how vital morality is in today’s proceedings.
2. Law and morality
Law and morality coexist together. Some relationships in society cannot be regulated by law, although the rules of morality can. For example, normative acts will not confirm the rules of behaviour between children and parents in the family, and they will be regulated by moral laws (respect between children and parents, etc.). There are both differences and similarities between law and morality. “The norm of law regulates the external behaviour of people, while morality is more interested in the subjective will of a person and the motive of his behaviour”.[6] Legal ethical values found a place in the legal system, specifically in the value system of the constitution, but in private law, they found expression in the norms that invalidate immoral transactions.[7] Strengthening morality in the Civil Code of Georgia is important because morality and law fill their weaknesses. Subjects of Civil Law would find themselves in a precarious position if they had no way to escape immoral transactions. “The law compensates for the functional weaknesses of morality, which from the observer’s point of view often give cognition indeterminate and motivationally unstable results”.[8] Thus, it is clear that the relationship between morality and law is essential. This became the reason why morality was strengthened in the civil codes of Georgia, Germany, and other countries. Without the norms that protect a person from transactions made against good morals and customs, the civil code would be far away from excellence, human relations, and the individual himself because it would not be able to solve the negative situation in which the subject of civil law may find himself, in case of making an immoral transaction. It is important to have a strong connection between law and humans; law tries to analyze each existing relationship and provide a relevant solution (especially in the case of private law because subjects have private autonomy as a high degree of independence). The strengthening of morals in the Civil Code of Georgia indicates that Georgian litigation, private law, is focused on finding and establishing more connections with people, facilitating legal relations, and protecting them.
The general relationship between morality and law is a very interesting and arguable issue. In this regard, there are three main approaches - first, morality and law form one whole; Second, they are essentially different from each other, and third, law and morality are not the same, nor are they separate from each other.[9] The last opinion deserves attention, which is accurate because everyday relationships are regulated differently by law and morality, although the reinforcement of morality in the civil code in France and later in other countries indicates that morality and law are not separated from each other, although they do not create unity. In jurisprudence, there is a common opinion about the essential difference between morality and law. For example, Robert Paul Wolff argues that the law necessitates obedience, regardless of one’s personal beliefs, which conflicts with individual moral autonomy, requiring them to accept responsibility for their actions and act solely on their own decisions, according to the merits of their actions.[10] The opinion that morality and law are essentially different is not a result of rational cognition because the Civil Code of Georgia, Article 54, entitled: “Unlawful and immoral transactions”, shows that private law and morality “cooperate” in a way. According to philosopher and lawyer Ronald Dworkin, morality plays an essential role in legal thinking.[11] However, not only does morality play an essential role in legal thinking, but the law itself interferes with moral laws, a clear example of which is that law has become a means of transforming immoral relationships into moral ones - The European Court of Human Rights has recognized same-sex marriage as normal.[12]
Finally, it is correct to say that “morality is in law, and law is in morality”.[13] There is an essential connection between them, and they are tasked with eliminating each other’s weaknesses. In this regard, morality significantly supports private law because, with the help of Article 54 of the Civil Code, the Civil Code allows the invalidation of negative (immoral) transactions, each of which cannot be considered by the legislator in advance.
3.Morality – Internal or External Obligation?
It is important to clarify the obligatory nature of morality, the obligation that morality imposes on us and, in some cases, affects private relationships - where does it come from? Considering a transaction against morality is a rather complex issue because, unlike the law, its meaning is not found unambiguously, and determining the measure by which a judge should be guided in a particular case is difficult. The obligation accompanying morality is seen as an “intrinsic obligation” of which conscience appears as the determinant.[14] According to Kant’s opinion on this issue, legal obligation is external and ethical obligation is internal, meaning that ethics is its inner voice.[15] After analyzing morality, it is essential to draw a uniform conclusion about moral laws as intrinsic. “This law appears to be a property of our soul, and indeed, it is internal”.[16] It turns out that immorality, which can become the basis for invalidating a transaction, results from being guided by moral perceptions formed by individual cognition.
Most of the obligations come from the outside (statutory acts that establish binding rules for the behaviour to be followed), but there may not be a legal obligation, although something else prompts you to behave in a certain way. If no legal obligation forbids the subject to do a certain act, what can point to fulfilling the obligation? The answer to this must be found in morality, which controls from within, not from without, obliging a person at the moment of performing a behaviour. It should be noted that a sanction cannot always follow moral obligation. For example, if someone sees a person drowning in the sea and morality obliges them to help the drowning person, but they cannot help - in such a situation, they cannot be held accountable for not being able to assist if they explain that they do not know how to swim and were too afraid to help. Failure to fulfil a moral obligation (as opposed to a legal one) must leave a person with a feeling of dissatisfaction and inferiority, which speaks in favour of morality as an internal phenomenon.
4.Discussion of Article 54 of the Civil Code in terms of morality
According to Article 54 of the Civil Code, the third value that leads to the invalidity of a transaction is moral norms – „a transaction that violates the rules and prohibitions established by law, is against public order or moral norms is invalid“. Often, it is difficult to separate the three values mentioned in the law - rules and prohibitions established by the law, public order and moral norms, “violation of the law is often perceived as a manifestation of will against morality“.[17] In order to invalidate a transaction on the grounds of immorality, the very fact of concluding or the content of the transaction must violate the norms of morality[18] because it is often the case that the transaction, together with public order, also violates the norms of morality; and while invalidating a transaction, public order is preferred among them, because morality is a more evaluative concept, unlike public order.
Based on the general nature of Article 54 of the Civil Code, the main task is determining morality and what an immoral transaction means, which is the judge’s prerogative. Since each person’s way of communication and knowledge differs, judges have formulated varying definitions in Georgian private law.
The invalidity of the transaction does not depend on whether the contracting parties were aware that they were acting against morality.[19] This aspect does not matter because when entering into a transaction on an immoral basis analyzed by the parties to the transaction and without analysis, the results of the transaction are the same, and violation of legal interests is possible in both cases. In addition, the subject of civil law cannot take into account in advance all the moral rules that can decide the fate of their legal relationship.
The strengthening of morality under Article 54 of the Civil Code is a welcome fact. In its absence, private law could not solve such problems that may arise in the daily life of the subjects of the law. Private law establishes stronger connections with individuals by implementing morality in the civil code, accounting for them as the primary value and considering the established rules in society. Thus, it can be said that Article 54 brought a lot of good to the subject of private law (in terms of morality), but nevertheless, it demanded certain negative concessions from the natural/legal person because otherwise, it would not be possible to implement the norm in legal proceedings and bring positive results. It is important to reassess the negative factors caused by strengthening morality in Article 54 of the Civil Code.
5.Negative consequences caused by strengthening the rules of morality in the Civil Code of Georgia
5.1. The conflict between morality and the private autonomy of individuals
An important value of civil law is private autonomy, which, when concluding a transaction, gives the parties freedom in the form of the transaction (unless otherwise established by law) and its content. It is an active aspect for legal entities, as it facilitates using such an institution as a transaction. Nevertheless, Article 54 of the Civil Code serves to limit private autonomy,[20] as it somehow calls into question the validity of the transaction and, in the presence of relevant (including immoral) grounds, leads to the invalidity of a freely entered-into transaction.
As already mentioned, conscience is a determinant of moral obligation. If moral norms are formed individually by each person (albeit influenced by external factors), a question arises when two parties with their moral obligations are involved in a case. In such a scenario, the judge, who has also formed their own internal moral rules, must decide which perception of morality to follow. Of any party or his own? so that the decision made by him is fair and not biased. It is as if a hopeless situation is created, but it is easy to find a solution for the following reason – “human ethics are formed again in the coexistence of people”.[21] And since our ethical (moral) norms are formed in coexistence with other people, i.e. this coexistence has an impact on the formation of the moral laws of each individual, and as a result, one common public ethics, limited in time and space, is created, which is guided/should be guided by the judge during the proceedings. “It was not the general and abstract morality that was recognized, but the “prevailing morality“ in a specific society“.[22] However, there must be an exception to this approach, and a middle ground must be reconciled because otherwise, the law will appear as a legalization of injustice.
This interim must be of the following kind because conscience is a personal matter, and in private law, individuals are granted private autonomy to act according to their own conscience. However, what may be acceptable to both parties involved in a transaction may not necessarily be acceptable to society. This is why it is important to find a balance between individual autonomy and societal morality. So, a transaction can be invalidated due to immorality regardless of both parties’ views, knowledge, and will. It should not be disputed that putting the contractors in such a situation is a gross violation of their right, in particular, to determine the content and form of the transaction freely. This is one of the negative effects of the approval of the rules of morality in Article 54 of the Civil Code, and it is in this direction that attention should be focused, therefore, the question should be asked whether or not the general rule of conduct established in society (morality) have a negative impact on the fate of a transaction based on the private autonomy of individuals? Proceedings should develop so that if the parties to the transaction do not have a problem with the consequences of the transaction made against moral rules and this agreement does not harm other third parties, the opinion established in the society should not affect the legal relationship between the contractors. “The immorality of the motive of the transaction may become the basis for considering the whole transaction as immoral, for example, leaving property to a lover under the condition that they will not leave the testator alone during their lifetime”.[23] In this case, why should the law interfere with a person’s right to dispose of his property freely? If both the testator and the loved one are willing/is in their interest to exchange for the benefits that the transaction brings, conclude a contract of such content that does not harm the third party. Thus, case law in this regard should not be shared. In the conflict between moral rules and private autonomy, the complete disregard of the latter is not the result of rational cognition and should simply be considered as an evil interference in the rights of others.
5.2. Problems caused by the definition of
საზოგადოებრივ ადგილას განხორცელებული სექსუალური შევიწროება – არსებული ადმინისტრაციულ სამართლებრივი რეგულირება და პრობლემური ასპექტები
Get PDFIn 2017, Georgia has ratified the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and has taken the responsibility to evaluate the form of gender discrimination such as sexual harassment as the act of violence against women and to take all appropriate measures to ensure that any form of unwanted sexual behavior (verbal, non-verbal or physical) which intended to cause or interferes with a persons dignity and in particular which to create an intimidating, hostile, degrading or abusive environment, is subject to an appropriate legal sanction. Sexual harassment is a widespread phenomenon, often based on gender stereotypes prevalent in society. This form of gender discrimination not only violates the rights and interests of the victim but also creates an environment that can be restrictive and damaging to any person. In order to approximate the Convention, the Parliament of Georgia made a number of legislative changes in 2019, including establishing administrative liability for sexual harassment conducted in public places, although by that time Georgian legal space was not familiar with the definition of the public place, which raises the problems for assessing the fact. The article tries to resolve the ambiguous issues related to this subject
სტრასბურგის სასამართლოს 2020 წლის იურისპრუდენცია
Get PDFThe Article concerns the Jurisprudence of the European Court of Human Rights of 2020. It does not have an ambitious objective to give an exhaustive analysis of the Court’s Case – Law, it only tries to show several important issues, which reflect current approaches of the Court and tendencies or directions of its Case-Law development. The following issues and cases will be discussed in the Article: jurisdiction of a State (art.1) and its interconnection with the admissibility of the application (inter-state case Slovenia v. Croatia, concerning an alleged violation of convention rights of a legal entity, which could not be classified as a “non-governmental organization” in the meaning of the art. 34); refusal by the Court to acknowledge extra-territorial jurisdiction in respect of the foreign nationals who apply for a visa at an embassy or consulate abroad ( M.N and Others v. Belgium); extra-territorial effect of a refugee status within the EU (Shiksaitov v. Slovakia); just satisfaction in respect of property outside of a respondent state territory and indirect binding nature of the Court’s judgment for a State, which was not a party in convention proceedings (Molla v. Greece ); issue of a state responsibility (in the meaning of violation of negative or positive obligations) for acts committed by a state agent in his private capacity, and the issue of whether and under what circumstances the approval by a state of a committed act raises its responsibility before the Convention; obligations in the context of extradition and arbitrary release from serving a prison sentence for a racially motivated hate crime (Makuchyan and Minasyan v. Azerbaijan and Hungary); importance of the freedom of expression of a member of Parliament from the opposition political party (Selahattin Demirtaş v. Turkey,); and of an accused person during his case hearing in the context of the statements for self-defense that resulted in his conviction for defamation (Miljević v. Croatia); compatibility of an organized calling for boycott with the art. 10 and the threshold, that should never be overstepped while exercising freedom of speech (Baldassi and Others v. France), etc. It is emphasized in the Article that the Court has developed a number of new approaches and principles in order to protect vulnerable groups (Roma community, asylum seekers, homosexuals, victims of domestic violence or trafficking, children (from ill-treatment by their parents)), as well as to introduce more detailed criteria to estimate the foreseeability of criminal provisions, concept of “tribunal established by law” (within the meaning of art.6) or more guarantees for personal data protection, etc. The Author is of an opinion that ECHR does follow its way of harmonious interpretation of the Convention with the other International law instruments and, in later cases, extends the application of the principle of subsidiarity including making its judgments indirectly binding for a State, which was not a party in the convention proceedings
დისკრიმინაციის ნიშნით შეუწყნარებლობის მოტივით ჩადენილი დანაშაულის სტატისტიკის ერთიანი, 2020 (ოქტომბერ-დეკემბერი) წლის ანგარიშის ანალიზი
Get PDFThe Constitution of Georgia guarantees the principle of equality of all human beings and the prohibition of discrimination on any grounds. It is this principle that is the highest guarantee to the use of all effective mechanisms to combat crimes of intolerance committed on the groundsdiscrimination. Furthermore,, the criminal procedure legislation enshrines an obligation of a comperhensive investigation of a crime committed on the grounds of discrimination. Georgia has an obligation to produce statistics on crimes of intolerance committed on the grounds of discriminationunder international treaties and acts. The production of this category of statistics will, on the one hand, help the state to plan a correct, unified policy to effectively combat crimes of intolerance committed on the grounds of discrimination, and on the other hand will enable stakeholders to obtain information on the prevalence of this category of crime. About: what is a main category of a crime committed with a motive of hatred; What is the courts approach to this category of crime; What kind of sentences is used in the main case by the court and other relevant issues. Until 2020, Georgia did not have a unified mechanism for producing statistics on crimes committed on the grounds of intolerance of discrimination. This information was collected in a fragmented and minimal manner (recording the number of cases initiated in the investigation, the number of persons prosecuted and the number of judgments rendered by the court). These data did not provide a complete picture for a wide range of assessments of this category of crime, which led to the need to develop a unified statistics memorandum. The paper is an attempt to study this issue in more detail and to analyze the first published unified statistical data
Cryptocurrency-Related Cybercrime Types and Threats
Get PDF This article emphasizes the types and threats of cybercrime related to cryptocurrencies. The necessity of implementing legislative regulations and invention of administrative control mechanisms in connection with the growth of the digital economy is also discussed. The presented article also elucidates features of cyber-cartels and their new instruments, such as “Auction Robots”, for committing illicit activities as the new type of the organized crime in a digital world. This work also focuses on describing certain categories of cybercrime, such as cryptojacking, which is a scheme to use people’s devices (computers, smartphones, tablets and etc.), without their consent or knowledge, to secretly mine cryptocurrency on the victim’s dime. To analyze the growth in demand, this work highlights the index of the whole capitalization and the exchange rates of the cryptocurrencies. Article also underlines the threat of the element of anonymity related to cryptocurrencies as the main instrument for criminals to either disguise terrorism financing or evade paying taxes. Some valuable examples of amendments developed and introduced by the US and Great Britain legislations to regulate crypto market and control tax evasion are also cited. სტატიაში განხილულია კრიპტოვალუტასტან დაკავშირებული კიბერდანაშაულის სახეები და საფრთხეები. ციფრული ეკონომიკის ზრდის ფონზე, საკანონმდებლო რეგულაციებისა და ადმინისტრაციული კონტროლის მექანიზმების შექმნის საჭიროებები. ასევე განხილულია კიბერკარტელები, როგორც ორგანიზებული დანაშაულის ახალი მიმართულება ციფრულ სამყაროში და მათი დანაშაულებრივი საქმიანობის ერთ-ერთი მთავარი ინსტრუმენტი ე.წ „სააუქციონო რობოტები“. მიმოხილულია კრიპტოვალუტასთან დაკავშირებული კიბერდანაშულის ახალი სახე „კრიპტოჯეკინგი“ (ინგლ. Cryptojacking), რომლის დროსაც ხორციელდება სხვისი კუთვნილი კომპიუტერული მოწყობილობების გამოთვლითი შესაძლებლობების ფარული გამოყენება სხვადასხვა სახის კრიპტოვალუტის საწარმოებლად. სტატიაში განხილულია კრიპტოვალუტებისთვის დამახასიათებელი ანონიმურობის ელემენტი, რომელიც წარმოადგენს როგორც ტერორიზმის დაფინანსების შენიღბვის, ისე გადასახადებისთვის თავის არიდების ერთ-ერთ საშუალებას. ხაზგასმულია ქართული საკანონმდებლო ბაზის სიმწირე და სარეკომენდაციო მაგალითების სახით მოყვანილია ამერიკის შეერთებული შტატებისა და დიდი ბრიტანეთის მიერ შემუშავებული და განხორციელებული საკანონმდებლო ცვლილებები კრიპროვალუტის ბაზრის კონტროლისა და გადასახადებით დაბეგვრის რეგულაციებთან დაკავშირებით. 
პროფესორი გურამ ნაჭყებია როგორც სისხლის სამართლის ფილოსოფიის პრობლემების მკვლევარი (კრებულში „ფილოსოფიური ძიებანი“ გამოქვეყნებული ნაშრომების მიხედვით)
Get PDFThis work covers the philosophical analysis of research of criminal law problems according to the works published in “Philosophical Quests” Collection of the Academy of Philosophic Sciences of Georgia by one of the modern prominent representatives of Georgian jurisprudence, Professor Guram Natchebia. Namely, it covers the philosophical problems of crime as deny of law, its concept-forming categories, deliberate crime as the idea and basis of value error and criminal relations, boundary categories of guilt and axiological aspects of law. Special attention is paid to attitude to criminal responsibility, as any concrete obligation, not person’s obligation, what allows foundation of positive responsibility idea; analysis of guilt and irresponsibility as the synonymic notions, presentation of the basic categories of general theory of law: “composition of act” and “illegality” and the social philosophy category of “guilt”; consideration of guilt as phenomenon on the boundary of psychic and normative and its boundary categories (responsibility with its positive and negative aspects; freedom; cause and effect; quantitative and qualitative; legal relations; moral; sense of responsibility; conscience); Taking of the categories of “illegality of action” and person’s “guilt” out of the descriptive consideration structure for foundation of the normative notion of guilt and their announcement as evaluative, axiological categories, as opposed to the category of “composition of act”, as a gnoseological category. It is demonstrated that Professor Guram Natchkebia’s works cover both general principles of philosophy of law and philosophic matters of the general categories of law. Contribution of Professor Guram Natchkebia to development of Georgian legal philosophy in general and namely, of the Georgian criminal law philosophy is assessed
დისკრიმინაციის ნიშნით შეუწყნარებლობის მოტივით დანაშაულის ჩადენისთვის პირის პასუხისგებაში მიცემისთვის საკმარისი მტკიცებულებათა ერთობლიობა და ამ მოტივის მნიშვნელობა სასჯელის განსაზღვრის დროს
No full textAll human beings are born free and equal in dignity and rights. The fight against discrimination is recognized by the Constitution of Georgia – “All persons are equal before the law”, any kind of discrimination is not allowed. This is emphasized in the principles and norms specified in international conventions and declarations. The obligation to study the discriminatory motive within the framework of the full, comprehensive and objective investigation stipulated by the procedural legis- lation rests with the law enforcement officers, and the court is obliged to administer justice, to make a summary decision based on the evidence. In addition, it must be substantiated. According to the legislation of Georgia, to convict a person is necessary to have a set of evidences that would convince an objective person of the person’s guilt. In the case of a crime motivated by hate, it is additionally necessary to have such indicators – evidence, which is necessary to confirm the existence of the motive. National law, which is in full compliance with international law, requires that the summary judgment passed by the court and the type and extent of the sentence applied must be justified. The court’s verdict should give any person the opportu- nity to get information on what evidence and why the court made this particular decision. In this paper are discussed the indicators of crimes committed with the motive of intolerance based on discrimination and the types of evidence to be obtained based on them, as well as the decisions of the national court and the standards of substantiation of these decisions are studied – on what evidence is the summary decision made and to what extent does the motive of hatred influence the type and size of the relative punishment.
Keywords: Crimes motivated by intolerance committed on the grounds of discrimination, Hate Crime, Evidence sufficient to convict a person, Importance of motive in sentencing, Punishment, Practice Analysis
Introduction
According to the Constitution of Georgia, all people are equal before the law and discrimination on any basis is prohibited. In 2012 and 2017, amendments were made to the Criminal Code of Georgia (hereinafter CCG), through which the national legislation recognized the motive of intolerance based on discrimination as an aggravating circumstance of the crime. The implementation of the changes was based on many circumstances, including the standard established by the practice of the European Court of Human Rights, which obliges the state to respond to hate crimes in a timely, appropriate and effective manner.
The obligation to study the motive of hatred, within the framework of the complete, comprehensive and objective investigation stipulated by the Criminal Procedure Code of Georgia (hereinafter CPCG), rests with the law enforcement body, and the court is obliged to administer justice and issue a legal, justified and fair verdict.
The CPCG does not allow the prosecutor and the judge to aggravate the person with guilt at the stage of substantive consideration of the case in court. According to the law, only before the case is sent to the court, the prosecutor has the right to include the motive of the crime as an aggravating circumstance of the crime in the decision on the charge. The judge is guided by the evidence in the case and the decision on the charge of the person, therefore, the possible crime specified in the decision on the charge is the most serious for which the person can be convicted.
In order to convict a person, it is necessary to have a set of evidence that would convince an objective person of his guilt. It is the responsibility of the investigation to collect evidence, to reflect the motive in the decision on the charge - of the prosecutor\u27s office, to discuss the motive and increase the punishment based on it - of the court. Article 531 of the CCG, which is used during the trial, imperatively imposes on the judge the obligation that, in the presence of aggravating circumstances, when imposing a term of imprisonment at the time of committing the crime, the term of the sentence to be paid for the committed crime must be at least one year longer than the minimum term of the punishment stipulated by the relevant article or the section of the article of this code.
Unfortunately, a large part of the judgments passed by the court does not provide an opportunity to conclude that the mandatory provision provided by the CCG is always fulfilled. In many cases, part of the sentencing rationale is so vague, in some cases even abstract, that it is impossible to identify whether the court paid attention to the aggravating circumstance at all. Also, it is difficult to discuss the circumstances and evidence that were used as a basis for establishing or excluding the motive of intolerance based on the grounds of discrimination while committing a crime.
The decisions of the international court unanimously emphasize the state\u27s obligations in the process of combating crimes committed with the motive of intolerance on the grounds of discrimination, including such an important obligation as - the crime committed on the grounds of intolerance on the grounds of discrimination shall not be considered as a crime similar to an ordinary crime with no similar motive.[1] The fulfillment of this obligation does not mean only conducting an investigation and identifying the motive, it is necessary for the state to impose the appropriate liability. The punishment determined for the committed crime should be fair, should not encourage the offender and should ensure the achievement of the goals of the punishment. The state must ensure that at the time of sentencing, attention is paid to the additional harm caused by the hate motive, thus the harm caused by such motive must be taken into account when sentencing.
The mechanism of applying appropriate punishment and restoring justice in this way is emphasized in many international documents[2] and decisions made by the European Court of Human Rights.[3]
Based on the analysis of the legislation and the study of the judgments passed by the court, this paper will try to evaluate the problematic aspects related to the implementation of justice for crimes committed with the motive of intolerance based on discrimination, namely: evidentiary standards established by judicial practice for this category of crimes, the influence of the motive of intolerance based on discrimination on punishment and other important issues. In addition, this paper will try to assess the current trends and challenges and propose solutions to the identified problems.
Crimes Motivated by Intolerance Based on Discrimination
Before discussing the crime of intolerance based on discrimination, the meaning of this term should be clarified – “In theory and practice, the crime of intolerance based on discrimination has several names - discriminatory crime, hate motivated crime, hate crime, intolerance motivated crime and others. Essentially, each concept carries one content, namely: the motive for committing a crime is hatred, fear, disgust or stereotypical, biased attitude”.[4]
There is a distinction between a hate incident and a hate crime, “Intolerance crimes based on discrimination are distinguished from hate speech by the presence of an element such as crime. Only an attitude motivated by a stereotype or hatred cannot become the basis for imposing criminal liability, if it does not contain signs of a crime.”[5] Accordingly, the crime committed with the motive of intolerance based on the sign of discrimination is an intentional crime provided by the CCG, the motive of which is intolerance, hatred or contempt for a specific sign.
It should be noted that the regulations related to this category of actions are indicated in virtually all international agreements[6] or documents.[7] The OSCE Office for Democratic Institutions and Human Rights defines hate crimes as criminal offenses motivated by bias. The first element of this action is to criminalize it, if there is no crime under the CCG, there is no hate crime. The second important element is bias, the latter is what distinguishes this crime from other crimes.[8]
Georgian legislation is quite close to international standards. In addition to the fact that in 2014 the law of Georgia on the Elimination of All Forms of Discrimination was adopted, the motive of intolerance on the grounds of discrimination is provided for in the CCG, both in the general provisions (Article 531) and in the composition of the action (e.g. Article 156) or as a qualifying element of the action (e.g. Article 109).[9] It can be said that the Georgian legislation, in the main cases, provides the opportunity to determine the correct legal qualification.
A Set of Evidences Sufficient to Convict a Person
In order to convict a person, it is necessary to have evidence, which the investigative agency has the authority to obtain, and the court has the authority to evaluate. The European Court of Human Rights (hereinafter the European Court) clarified in the case of Barbera and others that the assessment of evidence, including the determination of its relevance, is the prerogative of national courts.[10]
According to the Constitution of Georgia, the decision on imposing a liability on a person as an accused must be based on a well-founded assumption, and the verdict of guilty must be based on unmistakable evidence. Any doubt that cannot be proved in accordance with the law must be resolved in favor of the accused. “The mentioned constitutional provision is one of the foundations of the legal state, it reinforces the important, universally recognized principle of avoiding the conviction of an innocent person – “in dubio pro reo”, according to which it is not allowed to convict a person on the basis of accusations of a dubious nature and, therefore, in the process of criminal prosecution, a person It creates an important guarantee of rights protection. The principle of imposing liability only on the basis of irrefutable evidence is a guarantee that an innocent person will not be convicted as a result of the arbitrariness or mistakes of state officials”.[11]
According to part 1 of Article 82 of the CCCG, “evidence must be evaluated in terms of its relevance, admissibility and truthfulness to the criminal case.” In accordance with the 3rd part of the same article – “in order to declare a person guilty by a verdict, a set of agreed evidence beyond a reasonable doubt is required”. The “beyond a reasonable doubt” standard defined by Article 3, Section 13 of the CCCG is defined as the set of evidence necessary for the court to issue a guilty verdict, which would convince an objective person of the person\u27s guilt. “The given evidentiary standard means that an objectively observing person (in this case, a judge or a jury) should have no reason to doubt the existence of certain facts, the truth of the charge presented to the accused and the latter\u27s guilt as a result of the evidence examined in court. Otherwise, any doubt should be resolved in favor of the accused (the so-called principle of in dubio pro reo)”.[12]
If there is any doubt about the credibility of the evidence, it should be decided in favor of the accused. According to the judicial practice of Georgia: “The authenticity of the evidence must be evaluated according to several criteria:
Does each piece of evidence, including the testimony of a witness, contain conflicting and mutually exclusive information;
Each piece of evidence supports other pieces of evidence, if there is a contradiction between them, whose quality assessment is the competence of the court in every individual case;
How honest and impartial the witness is, does he have a physical defect that has a negative impact on the adequate perception of events;
Under what conditions has the formation of evidence taken place, for example: environmental conditions - poor visibility, crowded place, distance between the witness and the scene of the accident, etc.
Without evaluating the evidence according to these criteria and making a judgment about it, it is practically impossible to make an in-depth assessment of the authenticity of the evidence”.[13]
Each piece of evidence obtained as part of the investigation is evaluated, both individually and in combination with other pieces of evidence.
Legislation and practice do not specify by name what evidence must exist for a person\u27s conviction, only the standard is indicated - a set of evidence that is mutually agreed upon, clear and convincing. At this time, the subject of evaluation are not the types of evidence, but the standard created by their combination, which convinces an objective person of the person\u27s guilt.
Possible Evidence Establishing a Motive of Intolerance Based on the Grounds of Discrimination
In order to convict a person, it is necessary to have evidence, and in the case of a hate crime, there must also be evidence of a biased motive. The character, nature of the crime, the quality of the investigation proceeded and other circumstances affect the final decision.[14]
The Office for Democratic Institutions and Human Rights (ODIHR) explains that one of the evidences of motive can be the nature of the crime committed, for example, offensive graffiti about Islam, or hanging a pig\u27s head in a cemetery, making hateful comments before, during or after the attack, there can be hard-to-identify evidence, for example, the perpetrator\u27s possession of hate literature, etc.[15]
It is worth noting that the legislation of some countries provides a list of evidence that can be used to establish a motive, for example, according to the French Criminal Code “if the crime is preceded, accompanied or followed by written or verbal words, images, objects or actions of any nature that injure to the honor or reputation of the victim, or to the group of persons to which the victim belongs”.[16] Under UK law, such evidence can be: “During the commission of the crime or before or after the commission of the crime, the offender shows hostility towards the victim based on the victim\u27s membership (or alleged membership) of a racial or religious group...” - this can form the basis of a conclusion that a crime has been committed on the basis of religious or racial enmity, hatred.[17]
The case is a bit more complicated when there are crimes committed with mixed motives, when the criminal may have been motivated by several motives. At this time, the offender\u27s actions may be influenced more by situational factors (for example, social factors) than by personal individual views.[18] For example, a transgender person may become a victim of a robbery based on a mixed motive: first, that the offender wants to receive property benefits, and second, the offender hates people with a different gender identity and by this action, in addition to receiving property benefits, takes revenge on them.
The existence of a mixed motive is recognized by the legislation of some countries, for example, in the Criminal Code of Belgium, it is directly written that hostility, hatred and contempt for a person due to a protected characteristic can be “one of the motives of the crime”.[19] The requirement that bias to be the only motive, would significantly limit the cases of identification of these crimes.
As for the evidence establishing the crime committed with the motive of intolerance on the basis of discrimination - the starting point when discussing the above should be the circumstances and indicators indicating a biased attitude. An indicator is an objective criterion that can be used to judge the motive of hatred, although indicators alone are not enough to convict a person, it is necessary to present relevant evidence to the court.[20]
The Office of Democratic Institutions and Human Rights (ODIHR), which provides quite important clarifications in connection with crimes committed with the motive of intolerance on the basis of discrimination, explains in its documents that there may be several indicators in a criminal case:[21]
Perception of the victim/witness – whether he believes that the crime was committed with a motive of hatred;
Comments, written statements, gestures or graffiti – whether the alleged perpetrator made discriminatory comments, written statements, or gestured towards similar attitudes, or left graffiti, drawings or symbols at the scene of the incident. , which indicate the motive for committing the crime;
Racial, ethnic, gender and cultural differences – do potential offenders and victims differ by race, religion or ethnic/national origin or sexual orientation? Is there a history of hostility between the victim\u27s group and the alleged perpetrator? Is the victim a member of a group that predominates over other groups in the area where the incident occurred? Was the victim engaged in activities supporting his group before the incident?
Action organized by hate groups – were there objects or items left at the scene that indicate the crime was organized by a nationalist organization or hate group? Is there evidence that such a group is active in the neighborhood (eg posters, graffiti or leaflets)?
Preceding bias crimes/Incidents – Have there been similar incidents in the same area? Who were the victims? Has the victim received offensive mail, phone calls, or been the victim of verbal abuse based on his or her affiliation or membership in a targeted group?
Location and time of the act – was the victim in or near an area commonly associated with a particular group (e.g. a community center, mosque, church or other place of worship)? If the property was targeted, was it a site or site of religious or cultural significance, such as a historic monument or cemetery? Did the incident occur on a day of special significance (e.g., a religious holiday)?
It should be noted that the given list of indicators is conditional and not exhaustive, which implies that in each specific case such a circumstance, an indicator may be revealed, that does not appear in this list, although it indicates a biased attitude and may become a source of evidence for a hate motive. The Georgian legislation does not know the regulation of such content. Unfortunately, there are no academic papers that explain the issue in depth and based on Georgian legislation and practice.
The Influence of the Motive of Intolerance On the Basis of Discrimination on Punishment
It is explained by the Supreme Court of Georgia that "the court considers the case within the framework of the charges presented. According to Article 17, Part 2 of the CCCG, charging a person is the sole authority of the prosecutor. According to Article 169, Part 3, Sub-Clause “b” of the same Code, the resolution on the accusation should state: formulation of the charge – “Description of the incriminating action, indicating the place, time, method, means, weapon, as well as the result caused by this action. Thus, within the framework of the presented charge, the wording of the charge formulated by the prosecutor in the decision on the charge is understood, in which, the description of the illegal and guilty action (how it was manifested), which the prosecution claims against the accused, the place, time, method, means, with reference to the weapon, as well as the result caused by this action should be clearly specified”,[22] which means that when considering the issue of guilt-innocence of a person, the court cannot deviate from the wording specified in the resolution on the charge, accordingly, if the accuser, the prosecutor misses or ignores the circumstances qualifying the action, at the stage of the trial, the judge, even in the presence of hundreds of evidences, will not be able to aggravate the guilt for a person.
The Office for Democratic Institutions and Human Rights (ODIHR) regarding the use of punishment for crimes committed with the motive of intolerance based on discrimination, notes that there are three main arguments for the use of harsher punishments for this category of crime: the first is the symbolic value, the meaning, that the state specifically condemns this category of crime; the second is punishment for the harm caused – a crime of intolerance based on discrimination causes greater harm to the victim than other crimes, it also affects other members of the protected group, and therefore the punishment is determined according to the harm caused to the individual as well as to society; the third argument is that at this time a greater crime, a more serious crime, is being punished, which makes it necessary to use proportional punishment.[23]
It is important to evaluate the experience of foreign countries regarding the use of harsher punishments for the crime of intolerance based on discrimination, based on which two approaches can be formed: one, when generally there is a heavier punishment for any crime committed with a motive of bias, and second, a heavier punishment in case of committing specific crimes with a motive of bias. For example, according to the Criminal Code of the UK, if the crime is racially aggravated, the court must consider this as an aggravating factor.[24] Article 67 of the Criminal Code of Ukraine says approximately the same.[25] However, for example, under Belgian law, the commission of a hate crime is an aggravating circumstance that can double the punishment for crimes such as rape, assault, intentional homicide, and other crimes specified in the same article.[26]
In this regard, the legislation of Georgia can be attributed to a mixed model, since the CCG recognizes both a general provision - in the form of Article 531 of the CCG (which aggravates liability for any crime, the motive of which is intolerance on the groun
Digital Transformation of Legal Education in the Time of Coronavirus
Get PDFThe COVID-19 pandemic has created the largest disruption of education systems affecting nearly 1.6 billion learners in more than 190 countries.1 Closures of schools and other learning spaces have impacted 94 percent of the world’s student population, up to 99 percent in low and lower-middle-income countries.2 Despite pandemic education systems have been transformed by using information and communication technologies. Digital platforms and applications have become key instruments for supporting the continuation of the teaching-learning processes during the lockdown period. In different countries, universities have created online classes and courses for students. They have provided access to online libraries and developed training programs for the enhancement of digital skills. Regardless of these actions, new digital reality demands new visions and initiatives for overcoming challenges in this process. In this regard, on the one hand, the article aims to explore ways of digital transformation of education systems, especially in law schools. On the other hand, it examines factors that impede the successful usage of digital tools. Overall, the paper will promote to clarify key trends for modern legal education policy.
Keywords: Digital Transformation, Legal Education, Coronavirus
Introduction
Digital advances have transformed society and the economy with an ever-deepening impact on everyday life. However, until the COVID-19 pandemic, its impact on education and training was much more limited. While COVID-19 demonstrated the need for higher levels of digital capacity in education and training, it also led to the amplification of existing challenges and inequalities between those who have access to digital technologies and those who do not, including individuals from disadvantaged backgrounds.[1] The pandemic has also revealed challenges for education and training systems related to the digital capacities of education and training institutions, and overall levels of digital skills and competences.[2]
Proficient computer knowledge, communication skills, clarity of expression, emotionally connect with the students, and other necessary skills to deal with the demands of the online platforms represent online teaching skills and techniques needed to teach through online mode. Virtual classroom experience, excellent presentation skills with addressing to the point of a given topic, and proper teaching-learning tools are significant to manage the online teaching process.[3]
Teacher professional development is conceptualized within the skill acquisition discourse, meaning that professional development should equip teachers with the competences necessary for the digital transitions, but without defining what kind of competences these should be.[4] The attractiveness of the education profession and its overall social status is connected to the idea of a highly competent profession that supports career progression through the diversification of career opportunities for lecturers, trainers, and school leaders.[5]
Despite challenges, the OECD considers that the pandemic, while representing a major stress test for education systems, has provided an opportunity to “break down old barriers” and “open up” schools and education systems to the outside world, including the introduction of digital technologies and greater involvement of private technology actors in educational affairs.[6] The OECD depicts digital technologies as being capable of providing personalized learning, finding new responses to students’ learning needs, and making education systems more relevant to the modern world. Thus, digital learning tools need to be introduced in education systems “to provide students with more agency and autonomy over their learning”.[7] In the light of the above, it is essential to explore how states used digital technologies to change a model of education during the pandemic. The digitalization of the education system has brought new methods and approaches for the teaching-learning process. Information and communication technologies can stimulate the creation of new opportunities for students, professors and provide communication among them regardless of boundaries. Digital advances have facilitated the development of instruments to perform tasks remotely in various institutions including in law schools. The trends of digital transformation will define the future of legal education in the digital era as well.
International Trends of Digital Transformation of Education Systems during the Pandemic
Estonia, the Baltic nation of just 1.3 million people has attracted the attention of world leaders and academics thanks to its high-tech digital society. 99% of Estonia’s public services are available on the web 24 hours a day and 99% of schools had already before the Covid-19 been using some type of e-solutions.[8]
The key initiatives started in education as Estonia pledged to put computers in every classroom and by 2000, every school in the country was online. The government also offered free computer training to 10% of the adult population. The effort helped raise the percentage of Estonians who use the internet from 29 percent in 2000 to 91% in 2016.[9]
Since 2014, Estonians have had a lifelong learning strategy that also includes a digital transformation program. The idea of the program is to help develop the digital competencies of both, the teachers, and the students. IT-training courses and instructional materials helped to integrate digital technology into the learning process to develop digital competence.[10]
Also, Estonia set itself the goal of digitalizing all educational materials already in 2015. The success of the digital transformation of the Estonian education system relies on thorough professional development and training of teachers and educational technologists. In addition to teaching knowledge and skills in the digital field, Estonian education widely uses numerous smart solutions including digital databases, digital textbooks, e-learning materials, digital class diaries, and digital assessments.[11]
The Innove Foundation, founded in 2003 to provide implementation support for the Ministry of Education and Research, and the Information Technology Foundation for Education (HITSA), founded in 2013 to promote digital skills development in education—two government-supported foundations that have played key roles in centrally organizing Estonia’s collection of digital resources.[12]
E-Koolikott (“e-Schoolbag”) is the primary source of digital resources in Estonia, a nationwide online library of more than 20,000 educational resources. E-Schoolbag was developed in 2016 by the Ministry of Education and Research. Currently, it is run by the Innove Foundation and HITSA. Teachers, subject specialists, universities, and private publishers can all post resources to e-Schoolbag, and groups of subject-area experts are responsible for reviewing the resources for quality. Parents and guardians also have access to e-Schoolbag to support children’s learning at home.[13]
The e-Schoolbag resources are organized to support the teaching and learning of Estonia’s national curriculum. They are searchable by curriculum subject and grade level as well as by other required elements of the national curriculum, such as Key Competency or Cross-Curricular Theme. To develop digital resources, Estonian law has required all new hard-copy textbooks and workbooks to be made available in digital form since 2015. In addition to e-Schoolbag, the Innove Foundation and HITSA provide lists of online learning resources, including tools developed by Estonia’s robust educational technology sector. Some of these lists were available prior to school closures, while others respond to specific needs raised by distance learning, such as the need to assess and provide feedback to students entirely online.[14]
France was well-positioned in one sense for the digital shifts during the pandemic. In 2016, its digital education plan, and its curriculum reform created banks of digital resources (BRNE). These included activities and lessons. France already has a National Center for Distance Education (CNED). As soon as school closed down, it set up “My class at home” with online content for students. In addition to stock lessons, there are tasks to complete and lessons given by videoconference. The websites of both the Ministry of National Education and Youth and the Ministry of Higher Education also have a wealth of other material.[15]
Companies and non-governmental organizations are also getting involved. The Canope Network has developed a virtual library with plenty of resources for digital training. French EdTech companies have made their know-how available free of charge and without conditions through a solidarity portal. Twitter, Instagram, Facebook, YouTube, and other social networks and media disseminate thousands of initiatives developed by students, lecturers, and parents.[16]
On March 14, 2020, the government of Latvia declared an emergency situation due to the global pandemic. Because of that, all educational institutions have been closed for more than a month thus making one of the biggest challenges for professors, teachers, students, parents, and the Ministry of Education. Although previously there had been developed virtual tools for contribution to the educational process, the digital capacity was insufficient since they were not originally developed for ensuring the learning process for all students of Latvia simultaneously. The shift of the educational approach has demanded a fast reaction from all the sides involved.[17] Students have limited access to technologies with an internet connection. Research made by the Ministry of Education in March 2020 showed that approximately 3%, which is around 5300 of the students studying in school, do not have access to a computer, or a smartphone with an internet connection, which made it difficult for these students to participate in the distance learning process.[18]
Because of the Covid-19 pandemic, the Ministry of Education and Science of Latvia collaborated with TV companies to create a video series to help teachers, students, and their parents at the learning process during the coronavirus crisis. The lessons were 20-minute-long audiovisual materials, in which teachers, enthusiasts of their field from different cities of Latvia, presented teaching materials in an interesting and addressing manner. The learning process was designed so that students could complete a task after each item learned and switch to the next subject. Video materials were accessible to anyone as the videos were published on a website and shown in two Latvian TV programs.[19]
In early 2019, the Federal Government of Germany decided to invest 5 billion euros for proliferating digital technologies in secondary schools (Bundesministerium für Bildung und Forschung 2020). However, most school districts have not been able to spend the money so far, due to complex bureaucratic procedures that precede expenditure, and the need to first develop sound and aligned pedagogical concepts for the use of technology.[20] In Germany, digital technology in education is a highly debated topic. For decades, emotional discussions have been centering around the usefulness of computers in education. During the Covid-19 crisis, discussions have emerged about the consequence of ‘remote teaching’ pointing to access inequities. While many teachers have heavily invested in remote teaching with digital tools, some teachers have demanded the immediate stop of the promotion of digital tools.[21]
There are two scenarios for a national platform in Germany. One scenario is related to an open network of universities in which the online courses and related learning are provided by the own platforms of the universities themselves. This is an inclusive but rather supply-oriented approach. In addition, a second, more demand-oriented and centralized platform scenario was developed. It focuses on a consistent user experience and a higher speed of implementation. [22]
Digitalization started in the mid-2000s in Italy. Interactive whiteboards started being introduced later in classrooms, followed by the digital register in 2012 and the National Plan for School Digitalization in 2015. This plan has been tested in the face of Covid-19.[23] The Technical Economic Institute Tosi of Busto Arsizio in Lombardy, the region most hit by the pandemic, activated a new online teaching mode as early as 25 February. This included teaching in MOOC mode, virtual classes, and smart working following the normal school timetable, except afternoon lessons.[24]
Italian Moocs are also helping school-leavers as they wrestle with difficult choices about their future – potentially without the physical support of the classroom. Some 50 orientation Moocs are offered by the Polytechnic University of Milan to help bridge the school-university gap, and other courses are available via the inter-university consortium.[25]
The Netherlands invested 2.5 million euros to ensure youngsters have the necessary devices for online learning. Educational institutions remained open to facilitating students who cannot use distance learning at home. Institutions can make their own choices for dealing with facilities on campus as long as they fit within the general instructions with regards to the pandemic. The internships and other education-related activities outside the institution can continue unless the employer has to stop the activity due to the pandemic.[26] The Ministry of Education, Culture, Sports, Science, and Technology of Japan supported local boards of education providing adequate measures as much as possible to support youngsters’ study, such as initiating appropriate home study programs and conducting supplementary lessons. It has also set up and published a learning support portal, which introduced various suggestions and tips for learning each subject, free learning materials, and videos that can be used at home.[27]
In the light of the foregoing considerations, high-tech societies have become role models for digital shifts in the education systems. In this regard, one of the best examples is Estonia with the focus on developing new digital platforms and supporting the enhancement of the digital skills of citizens. The digitalization of the education system demands to take more measures to provide access to computers and the Internet. Also, cooperation between educational institutions and EdTech companies will facilitate the development of new secure applications. It is essential to create new programs concerning digital capacity building for academic personnel of faculties including law institutions and E-libraries’ professionals as well.
Digital Transformation of the Georgian Education System in the Time of Coronavirus
The Ministry of Education and Science of Georgia, in cooperation with Georgian Public Broadcaster’s First Channel, launched an educational project titled – “Teleskola”. The project envisages the execution of tele-lessons provided by the national curriculum. Teleskola represents one of the formats for distance learning that enables all students, regardless of whether they have access to the Internet, to find interesting and cognitive lessons across all subjects.[28]
A Microsoft Office 365 user profile has been created for Georgian public institutions (administration, teachers, and students). A portal has been created that allows the student and parent to access the student profile without the administration of the institution and the teacher. Virtual classrooms have been established for classes and subjects in the Microsoft TEAMS program. Virtual consulting spaces have been set up in all districts of Georgia where volunteer technology experts from the "New School Model" help teachers implement distance learning. Data is being collected to establish access of teachers and students to the Internet and digital technologies.[29]
On June 12, 2020, the Georgian laws on general and higher education have been amended to define distance learning.[30] According to the amendments, distance learning is a process based on electronic and other communication means where students, teachers, professors do not meet in a classroom. Universities independently choose applications and platforms of distance learning. At the same time, they have the responsibility to develop appropriate guidelines on the distance teaching-learning process for students.
The lack of Internet access especially in regions has become one of the challenges for the Georgian education system. Also, faculties including law faculties do not have appropriate equipment for conducting online lectures from audiences of universities. The educational institutions have limited resources to develop their digital platforms and applications. Students do not have access to electronic versions of courts’ decisions. Staff members of universities cannot improve their digital skills regularly. They have a lack of training possibilities. Law schools mostly do not elaborate courses on the role of Artificial Intelligence in resolving legal disputes remotely. Overall, it is essential to overcome these challenges for the effective digitalization of the education sector in the future.
Conclusion
The pandemic has shown the power of digital tools in various fields including in the education sector. Information and communication technologies have provided the continuity of education. In the light of the above, states should develop new visions to support the sustainable adaptation of education to digital realities. New education strategies should define the steps of digital transformation, methodology of the online teaching-learning process, monitoring and evaluation instruments, solutions, ways for overcoming challenges in the digital world, the role of Artificial Intelligence for ensuring automatic routine tasks in universities including in law schools, initiatives for digital capacity building in education institutions. Such strategic visions will provide high-quality, inclusive, and accessible digital education.
In tech societies law schools will have to rethink the content of curriculums. Within modern legal curriculums universities should develop courses on instruments of the protection of digital rights, legal aspects of digital governance, the notion of cyberspace, the tools, opportunities, and challenges of digital transformation. In this regard, it is essential to analyze the role of digital advances especially the importance of Artificial Intelligence in terms of providing legal consultations and resolving legal disputes remotely. Therefore, every future lawyer should be equipped with appropriate digital knowledge and skills to be adaptable to new realities and changes.
Overall, the development of an appropriate digital education ecosystem promotes the effective digitalization of education institutions because it includes steps for providing digital infrastructure, connectivity, equipment, digital capacity planning, high-quality learning content, and secure platforms. This process will define future trends of legal education in the digital era as well.
Bibliography
A framework to Guide an Education Response to the COVID-19 Pandemic of 2020. (In English)
Adrian Zancajo, Antoni Verger, Pedro Bolea. Digitalization and beyond: the effects of Covid-19 on post-pandemic educational policy and delivery in Europe. Policy and Society. 41(1), 2022. Oxford University Press. (In English)
Anna Cristina D’Addio. Coronavirus: France has called for educational continuity. 15 April 2020. GEM Report. https://gemreportunesco.wordpress.com/2020/04/15/coronavirus-la-france-a-appele-a-la-continuite-pedagogique/ (In French)
Anna Cristina D’Addio. Francesca Endrizzi. Covid-19: How is Italy coping with school closure? GEM Report. 2 April 2020. https://gemreportunesco.wordpress.com/2020/04/02/covid-19-how-is-italy-coping-with-school-closure (In French)
Digital Education Action Plan (2021-2027). European Commission. https://education.ec.europa.eu/focus-topics/digital/education-action-plan (In English)
How did Estonia become a new role model in digital education? May 3, 2020. Education Nation. https://www.educationnation.ee/how-did-estonia-become-a-new-role-model-in-digital-education. (In English)
Lokanath Mishra, Tushar Gupta, Abha Shree. Online teaching-learning in higher education during lockdown period of COVID-19 pandemic, International Journal of Educational Research Open. Volume 1, 2020. (In English)
Michael Kerres. Against All Odds: Education in Germany Coping with Covid-19. 4 May Nature Public Health Emergency Collection. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7198090 (In English)
Ministry of Education and Science of Georgia launches an educational project “Teleskola”. 2020. https://mes.gov.ge/content.php?id=10248&lang=eng (In Georgian)
Monica Pfister. A Step Ahead: Estonia Emerges as a Leader in Worldwide Distance Learning Experiment. April 30, 2020. National Centre on Education and https://ncee.org/2020/04/a-step-ahead-estonia/ (In English)
Nina Linde. Latvia social briefing: The coronavirus pandemic has become a challenge for the Latvian education system: distance learning implementation experience. April 2020. Vol. 28, No. 3 (LVA). p.1. (In English)
Policy Brief: Education During COVID-19 and Beyond. United Nations. Executive Summary. August 2020. (In English)
Project ‘Tava klase’ (Your class) – lessons on TV. Ministry of Education and Science of Latvia. https://www.izm.gov.lv/en/highlights/4166-project-tava-klase-your-class-lessons-on-tv (In English)
Scalability of Online Education in Germany; a National Platform? Hochschulforum Digitalisierung. htt
The Margin of Moral Duty of Human Being to Participate in Biomedical Research
Get PDFThe existing paradigm of biomedical research ethics, based on respecting the free and informed consent of the research participant, originates from the famous Nuremberg Trial (1947), where the Nazi doctors were convicted of killing and torturing prisoners using medical experiments in German Concentration Camps during World War II. Since the second half of the 20th century, several international instruments have been developed to protect the rights of persons involved in research, considering the voluntariness of participation. Nevertheless, scientific community started to discuss the moral basis of mandatory human participation in biomedical research. Even today, some scholars argue that biomedical research creates public goods in the form of health, safety, and knowledge enjoyed almost by all members of society. The moral duty to participate in research is due to the need for public participation in producing public goods. Others suggest that human beings have a moral obligation to take some risks to help others. So, the moral duty to participate in biomedical research relies on the principles of justice, beneficence, etc. Considering the importance of this issue for research ethics, this article discusses the doctrines and theories, including public goods, free-riding, and beneficence, to set the margin of the moral duty of human beings to participate in biomedical research.
Keywords: Biomedical Research, Research Ethics, Moral.
Introduction
The history of the protection of the rights of human beings involved in biomedical research starts with the Nuremberg Code (1947)[1] - recognized as one of the most critical documents in the history of biomedical research ethics.[2] The first article of the Code declares the voluntary involvement of participants in medical research based on informed consent.[3] The Code provides for the right of the research subject to withdraw the consent as well.
In 1964, the World Medical Association (WMA) adopted the Declaration on the Ethical Principles for Medical Research Involving Human Subjects (Helsinki Declaration),[4] the primary addressee of which was the medical staff. According to Article 4 of the declaration, the doctor is responsible for protecting and improving the rights, health, and well-being of those involved in medical research. The 1966 International Covenant on Civil and Political Rights underlined the importance of informed and free consent of research subjects.[5] So, today, Good Clinical Practice (GCP) relies on respect for the autonomy of the human subject.[6]
In parallel with the formation of international instruments for the protection of the rights of those involved in biomedical research, in the 60s of the 20th century, the scientific community started to discuss the moral basis of mandatory participation of human beings in biomedical research. Certain representatives of the medical field (Walsh McDermott, Louis Lasagna, and Leon Eisenberg) advocated the idea of mandatory human participation in research.[7] They argued that the results of biomedical research created public goods in the form of health, safety, and knowledge consumed almost by all members of society.[8] In their view, the obligation to participate in research was due to the need for public participation in the production of public goods.[9] This view, along with other scholars, was challenged by the German philosopher Hans Jonas.[10] For Jonas, “the moral pull exerted by the desire to have public goods was counterbalanced by far more powerful moral force of respect for individual autonomy.” Besides, it was still controversial for him that health, safety, and knowledge were public goods.
Another consideration supporting the idea of mandatory participation in biomedical research derived from the doctrine of the social contract between generations.[11] Proponents of this doctrine considered that each previous generation produced public goods by participating in biomedical research enjoyed by each subsequent generation. Consequently, under the principle of reciprocity, society was morally indebted to the previous generation, which they could repay by producing public goods for future generations.[12] Not surprisingly, opponents challenged this doctrine.
The debate over the moral basis for mandatory human participation in biomedical research is still relevant. Since the 2000s, scholars (Harris, Rhodes, and Evans) have published several works.[13] These authors relying on the principles of Justice and Beneficence, argue for the existence of the moral duty to participate in biomedical research. They assume that almost all members of society enjoy the public goods generated from biomedical research. They set examples of not only active (medical care, medications) but passive forms of use of public goods like herd immunity resulting from vaccination. The proponents of mandatory human participation in biomedical research argue that the use of public goods without reciprocal contribution is unjust behavior, also referred to as "free-riding".[14] Thus, the general idea of Justice and Beneficence requires that the members of society redistribute the risk and burden of participation in research between themselves.[15] Other scholars (Sharp, Yarborough, Wachbroit, Wasserman, Rennie) have criticized the proponents for not discussing the issue in depth based on counterarguments.[16] The relevance of the present issue for biomedical research ethics stipulates an in-depth analysis of scientific discourse. Accordingly, the following chapters will consider the doctrines and theories of Public Good, Beneficence, Free-riding, and Contract Theory concerning the research subject.
Public good
Scholars supporting the existence of the moral duty to participate in biomedical research assume that knowledge and experience generated from biomedical research are what economists call a public good.[17] According to Paul Samuelson, “public good is a good which all enjoy in common in the sense that each individual’s consumption of such a good leads to no subtractions from any other individual’s consumption of that good…”.[18] In the modern economy, goods are usually defined as public goods if they are both non-rivalrous and non-excludable.[19] According to Reiss, national defense is a paradigmatic example of a public good.[20] Typical examples of public goods are fresh air and electoral democracy as well.[21] It does not matter who creates the public good, the private or the public sector.[22]
According to Schaefer et al., there is a significant difficulty in generating public goods itself. As a rule, there is no incentive for a person to contribute to a public good even if the beneficence is greater than the burden.[23] In addition, denying an individual to benefit from a public good no matter how much or how little he has contributed himself is impossible. That makes public goods deficit.[24] To overcome the problem, society sometimes uses coercive measures.[25] An example of public compulsion is the requirement to equip vehicles with a catalytic convector to ensure air purity.[26] In some cases, the community uses a positive incentive method to ensure the public good, such as administering influenza vaccination to develop herd immunity.[27] In other cases, people get involved in generating public goods because they believe they should do so.[28] For instance, many people vote not because they think their vote will radically change the outcome but because they believe they should support the electoral democracy.[29]
Unlike national security or electoral democracy, the answer to whether biomedical research produces a public good is unclear and much more ambiguous. For a valid conclusion, it is essential to analyze biomedical research from the public good’s perspective. Once public good is produced, no one can be excluded from benefiting from it. Indeed, biomedical research may lead to improvements in treatment methods or medications. Though, their availability is limited. Rennie points out that millions of people in developing countries still suffer from diseases those effective treatment methods researchers discovered years ago.[30] Sharp and Yarborough indicate limited public access to health services due to high costs.[31] De Melo-Martín points to the social contexts for restricting the use of results of biomedical research as well.[32]
It is noteworthy that Rosamond Rhodes - one of the proponents of mandatory human participation in biomedical research, speaks about the unfair distribution of medical resources in the United States.[33] Though, as she explains, limited access to medical services is irrelevant to mandatory human participation in research. Rhodes believes that participation in biomedical research should be encouraged in parallel with supporting access to medical care. However, Rennie argues that the public good argument can not be strong until everyone has access to the benefits of biomedical research.
Besides limited access to the benefits of biomedical research, scientists consider the factor of ineffective and failed research. According to Sharp and Yarborough, much biomedical research fails to cure human diseases. This fact strengthens skepticism about the social value of biomedical research.[34] As scholars argue, studies ended in indefinite or unsuccessful results can fall into the ineffective studies category.[35] According to Schaefer et al., the publicly available research\u27s negative consequences are the public good, as the results of the ineffectiveness of the treatment method or substance may be helpful for other studies.[36] Proponents of mandatory human participation in biomedical research argue that one person\u27s use of the knowledge made public does not deprive others of using it.[37] Moreover, they point to the inadmissibility of restricting public use of the knowledge gained from research.[38] However, publicly available results being a public good is controversial. Just publicity of information cannot be a public good, though it may facilitate subsequent research and thus be helpful.
Sharp and Yarborough focus on biomedical research beneficiaries. People who are skeptical about the social value of biomedical research think that the principal beneficiaries of biomedical research are those involved in developing, manufacturing, and distributing medical products and services.[39] As Sharp and Yarborough argue, research benefits may be considered relatively limited contributions to the public good as they are available only through a distributional network that cannot be separated from the interests of particular individuals and corporate entities.[40]
Another consideration is about “me-too” drugs. As David Wendler explains, “these are drugs identical in all clinically relevant respects to approved drugs already in use and the development of a me-too drug offers the potential to redistribute market share without increasing overall health and well-being.”[41] Rennie argues that most research focuses on the production of me-too drugs.[42] This is why there is a strong skepticism about the ideal goals of maximizing population involvement in biomedical research.[43]
Despite the many obstacles to concluding that biomedical research produces a public good, it must be taken into account that biomedical research has significantly contributed to developing public health and reducing infections or diseases. Proponents of mandatory human participation in biomedical research point out that the knowledge gained from biomedical research made it possible to eradicate polio infections over the past century and discover and develop new surgical and other life-saving techniques.[44] Besides, studies have shown the effectiveness of several medical interventions, significantly reducing morbidity and mortality.[45]
Furthermore, Reiss argues that “individuals benefit from a healthy population in various ways. For example, the fewer individuals are infected with a contagious disease, the less likely it is that any given (currently healthy) infects him - or herself. These benefits obtain in a non-excludable and non-rivalrous manner. A healthier population is also more likely to be productive, making public health analogous to education.”[46] However, a small portion of biomedical research focuses on eradicating infections or improving public health. Considering limited access to health services and medications, producing me-too drugs, and failed and industry-sponsored research, biomedical research does not produce a public good in its classical sense.
Beneficence
Another critical argument supporting mandatory human participation in biomedical research derives from the principle of benefitting others.[47] Some scholars argue that every member of society is responsible for preventing significant harm within a reasonable risk.[48] For instance, various diseases affect both patients and those around them. Biomedical research makes it possible to cure the disease in turn.[49] The principle of beneficence requires engaging in research to alleviate another person\u27s suffering.[50] Thus, a person who refuses to participate in biomedical research is indifferent to the suffering and pain experienced by another person and undeservedly and unfairly benefits from past studies in which participants have taken risks.[51] As Wendler argues, medical research inevitably exposes research participants to some risks for the benefit of other or future patients that brings us to the central ethical challenge - when is it ethically permissible to expose participants to risks of harm for the benefit of others?[52]
Proponents of mandatory human participation in research explain that there is prima facie, not an absolute, obligation to participate in biomedical research.[53] Prima facie obligation exists as long as there are no grounds excluding it.[54] According to Schaefer et al., one should break a promise to meet a friend to take care of his sick child.[55] Like this, if biomedical research violates one\u27s religious belief about bodily integrity, then the obligation to participate in biomedical research might be overridden.[56]
Rhodes emphasizes the nature of a moral obligation. She argues that if an action is morally obligatory, the person in case of non-performance is the addressee of negative moral attitudes like criticism, reprimand, and accusation.[57] Otherwise, there should be any legitimate excuse.[58] Herewith, Rennie clarifies the distinction between morally obligatory and morally permissible actions. He states, “there is no blameworthiness attached to the failure to perform morally permissible actions, though other disapproving attitudes may be warranted”.[59]
Rennie is interested in transforming action into a moral obligation. He argues that there are some moral reasons to act or not. Besides, “moral reasons in favor of action are necessary, but not sufficient, to make that action morally obligatory.”[60] For instance, a person may have a good reason to help homeless people voluntarily after work instead of going to the gym and exercising. Although volunteering has an excellent moral basis, going to the gym is not blameworthy. As Rennie suggests, for an action to be morally obligatory, social expectations must support those reasons and give them force.[61] For clarity, Rennie points to Susan Wolf\u27s argument that there may be a good moral reason to volunteer at a rape crisis center or avoid eating food of animal origin. Though, there is no (or not yet) sufficient social expectation that would transform that action into a moral obligation.[62]
Considering the above arguments, we can conclude that although participating in medical research may benefit others, the risks and burdens associated with biomedical research preclude social expectations that would make research participation morally binding.
Free-riding
As mentioned earlier, testing new drugs and medical interventions in humans poses risks to the research participants, no matter how many laboratory and animal tests precede it.[63] According to Rhodes, each of us benefits from medical research. Hence, a person who benefits from research but does not participate in it and therefore does not pose a particular risk is a free rider. John Harris explains in the same way. “Where I benefit from research but refuse to participate in it, I am clearly acting unfairly in some sense. I am free-riding on the back of the contribution of others.”[64]
As Wachbroit and Wasserman propose, merely benefiting is not morally objectionable, so further arguments are necessary.[65] The authors point to the principle of division of labor and, consequently, risk redistribution. In their view, each of us takes advantage of the risks posed by firefighters, although this does not oblige us all to become firefighters. Indeed, there is always the likelihood that some individuals will reap more benefits for the less risk they incur.
Alternative contribution is one of the main counterarguments of the moral basis for mandatory human participation in biomedical research.[66] Rennie wonders if it is possible to avoid being a free rider without personal involvement in the study. So, he offers an experiment in which a person donates a part of a hospital for research purposes, sponsors young researchers, or contributes to research by paying taxes. So, a person is not a free rider in its literal sense because he directly contributes to the research or in the form of taxes.[67]
Wachbroit and Wasserman discuss the need for participation in research in kind. As Rhodes suggests, a person who enjoys the benefits of diabetes research can fulfill a moral obligation by engaging in genetic research. Accordingly, if a diabetic patient can avoid being a free rider by participating in genetic research, why can\u27t the same be said in the case of teaching something?[68] "Dispute is narrowly confined to the question of whether we must contribute our bodies as well as our money. Because of the impossibility of medical advances without humans subjecting themselves to study, we have to give more than just our cash," – argues Rhodes.[69]
Rennie makes another assumption: the number of subjects willing to participate in biomedical research is enough or surplus. In that case, the moral basis for participating in the study is as weak as when requesting a blood donation when there is no blood shortage. Rennie argues that mandatory human participation in biomedical research rests on a somewhat utilitarian assumption – if more people volunteer for research, more discoveries will lead to significant social benefits. So, from the utilitarian perspective, biomedical research ought to be expanded as far as possible to maximize potential benefits, in which case there will never be enough research participants.[70]
For Rennie, one might test the soundness of the utilitarian approach by empirical facts. In particular, the practical management of biomedical research and implementation of its results should be evaluated. Besides, we should take into consideration the moral basis for mandatory participation in research - the public good argument, according to which biomedical research significantly improves public health.[71] According to Rennie, most research focuses on producing me-too drugs, or most of the funds raised for research focus on the diseases afflicting a small portion of the world\u27s population. That creates a strong skepticism about the ideal goal of maximizing population involvement in biomedical research.[72] Also, statistics show that the majority of industry-funded research results are favorable to research sponsors, or adverse research outcomes are unknown to physicians and patients. Also, statistics show that the majority of industry-funded research results are favorable to research sponsors,[73] or adverse research outcomes are unknown to physicians and patients.[74]
Despite Rennie\u27s arguments, there is no doubt that the development of medicine depends on discoveries made through biomedical research. However, the moral duty to participate in biomedical research associated with personal risks and burdens should also be analyzed from the perspective of individual freedom and contract theory.
Contract Theory
Some scholars link mandatory human participation in biomedical research with Contract Theory. In particular, as David Wendler explains, “at least all individuals who have access to medical care have benefited from the efforts of previous research participants in the form of effective vaccines and better medical treatments. One might try to argue that these benefits obligate us to participate in clinical research when it’s our turn.”[75] Nevertheless, as Wendler argues, these are the future patients who will benefit from the current participation in clinical research. So, “if we incur an obligation for the benefits due to previous research studies, we presumably are obligated to the patients who participated in those studies, an obligation we cannot discharge by participating in current studies.”[76]
For some scientists, it is conceptually wrong to deem the altruistic merits of previous generations as a debt.[77] They consider it quite enough to express gratitude for the gift.[78] Herewith, Arthur L. Caplan, the professor of bioethics, considered it too naive to deem participation in medical research only as altruism.[79] For clarity, he brought attention to coercion, deception, or compensation for participation in the studies. Besides, according to Wendler, contract theory does not work in case of the very first clinical trials since the participants had never benefited from previous clinical research.[80]
Alternatively, one might argue that we are obliged to participate in research, not for the benefit
აუცილებელი მოგერიების შეზღუდულად განმარტების გამო სასამართლო გადაწყვეტილების კრიტიკა
Get PDFThe article analyzes the case where, according to the factual circumstances, the person should have been acquitted of murder, but instead he was punished. self-defense is the human right to defend oneself from an aggressor. The basis of self-defense justification is the human right to life, the right to protect it from an aggressor. The article is a critical analysis of the judicial interpretation of the limits of self-defense. The article refers to the decisions of the Zugdidi District Court and the Supreme Court of Georgia regarding a specific case. According to the authors perception, both judgments present a narrow interpretation inconsistent with the essence of self-defense, and both instances came to different results due to different legal assessments of the facts. The author of the article lists the necessary criteria for the justification of self-defense and analyzes how it should be interpreted, simultaneously criticizing its judicial interpretations. Judicial definitions, made case by case, do not serve to foresee the defining norm of self-defense, which undermines legal security. Every person has the right to defend himself against an aggressor, to use effective and proportionate means of self-defense, so as not to put himself at risk. A person has the right to know precisely when and what kind of force he can use against the aggressor. In the Georgian reality, this right is systematically violated, and analyzing a specific criminal case serves to identify this problem. According to the author, Georgian judicial practice misses the essence and purpose of the norm, which contributes to the discrediting of the right to self-defense, and everything only strengthens the aggressor