Law and World (E-Journal) / სამართალი და მსოფლიო
Not a member yet
437 research outputs found
Sort by
The Arab Copyright Convention of 1981 - The Necessity of Amendment to Accommodate Digital Rights
Full text linkThe growing digital challenges accompanying the rise of digital creativity, alongside the efforts of Arab countries to enhance legal frameworks for protecting authors’ rights and literary works, have exposed a misalignment between the provisions of the 1981 Arab Copyright Convention and the evolving national objectives. This discrepancy necessitates revising the Convention to align with the fundamental standards for copyright protection in the digital environment, as set out in the WIPO Copyright Treaty of 1996—the first international treaty to address copyright in the context of the internet.
This paper explores the necessary revisions to the 1981 Convention to incorporate digital copyright protections. It examines the legal foundations required for recognizing such rights, including the originality and fixation of digital works, presumptions of ownership, the scope and limitations of rights, applicable legal protections, and enforcement mechanisms suited to the digital context.
The study offers significant academic value by addressing a key gap in comparative legal analysis between the Arab Copyright Convention and the WIPO Copyright Treaty. It integrates relevant international instruments and judicial precedents to propose practical legislative amendments compatible with the demands of the digital age. The findings contribute to the development of intellectual property scholarship and offer a concrete basis for legal reform. Ultimately, this study aims to strengthen the rights of Arab authors and promote the harmonization of regional copyright frameworks with established international standards.
Keywords: Arab Copyright Convention, WIPO Copyright Treaty, digital rights, treaty amendment, strengthening the Arab legal environment.
Introduction
The enactment of international and regional treaties related to copyright is an expression of the necessity to regulate and protect authors’ rights at both international and regional levels, given their paramount importance in the age of technology and cross-cultural exchange among nations, as this imperative has manifested in the adoption of various agreements, most notably the Berne Convention for the Protection of Literary and Artistic Works (1886) and its subsequent amendments—Stockholm (1967), Paris (1971), and 1979—which reinforced copyright protections; additionally, the TRIPS Agreement and the WIPO Copyright Treaty (1996) emerged as critical responses to a pivotal challenge in copyright protection: the digital dissemination of creative works.
The motivation behind subjecting copyright to international and regional regulatory frameworks lies in the widespread proliferation of creativity across the globe, transcending national boundaries, as the profound economic, social, and cultural impact of copyright protection on individuals and societies has driven Arab nations to adopt the Arab Copyright Convention (Baghdad, 1981), through which signatories expressed their commitment to establishing an effective and unified legal framework, where this framework aims to safeguard authors’ rights, incentivize Arab creators,[1] and promote the advancement of literature, arts, and sciences.
However, the evolution of publishing methods—marked by the ease of reproducing works infinitely at minimal cost and their instantaneous global dissemination via the internet—has rendered the Arab Copyright Convention inadequate in addressing these rapid and transformative developments; consequently, there is a pressing need to revisit and adapt its provisions to align with contemporary creative and distribution methods, as well as the resulting shifts in copyright paradigms—much like the updates seen in relevant international treaties.
This paper seeks to establish a foundational critique by examining the shortcomings of the Arab Copyright Convention and proposing amendments to align it with developments in international copyright law, particularly the WIPO Copyright Treaty (1996), as this treaty serves as the benchmark for proposed revisions, being the first international agreement to address copyright in the digital environment and the pioneering “Internet Treaty”.
Based on the above, this paper will seek to answer the following question: What provisions must be incorporated into the Arab Copyright Convention to keep pace with evolving digital copyright norms?
To address this question, the study relied on the comparative legal approach in addition to citing relevant case law and was divided into two parts.
Part One: Analyzes key provisions of the WIPO Copyright Treaty (1996) as the basis for proposed amendments.
Part Two: Identifies gaps in the Arab Copyright Convention and outlines necessary additions to ensure its relevance in the digital age.
1. The Protection Framework Established Under the WIPO Copyright Treaty of 1996
The 1990s witnessed a fundamental transformation, driven by the tremendous advancements in communication technologies and the widespread adoption of the internet and digital tools, as the field of intellectual property, particularly copyright law, was not immune to these changes, where the intersection of copyright with digital technology and the internet gave rise to new forms of artistic creations, distinct from traditional works in terms of their creation and distribution methods, which prompted nations to actively seek solutions by enacting treaties that keep pace with these developments, aiming to safeguard the moral and economic rights of authors.
To achieve this, and to harmonize global copyright norms[2], the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 was concluded and adopted by the Diplomatic Conference on December 20, 1996. The treaty consists of a preamble and 25 articles, clarifying its relationship with the Berne Convention (the foundational copyright treaty), establishing rights for computer programs and databases, and addressing distribution rights, rental rights, obligations concerning technological measures, rights management information, as well as enforcement provisions and administrative clauses.
The WIPO Copyright Treaty of 1996[3] is regarded as the first international treaty to address digital copyrights, extending protection to works emerging from digital technology and internet connectivity while ensuring the safeguards provided by prior relevant treaties, hence, it is commonly referred to as the “First Internet Treaty”, where this treaty is classified as a special agreement under Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, it neither derogates from any obligations nor diminishes any rights established by the Berne Convention; rather, it maintains a close connection with it, as the treaty seeks to address the gaps in protecting digital works under the Berne Convention, as emphasized in its preamble, which states that the treaty was formulated in response to the parties’ recognition of the need for new international rules and the clarification of interpretations of existing provisions to provide appropriate solutions to issues arising from recent economic, social, cultural, and technological developments[4]—particularly the profound impact of the latter on the creation and dissemination of literary and artistic works due to their integration with the internet.
1.1 Protected works
Article 2 of the 1996 WIPO Copyright Treaty (WCT) stipulates that the granted protection covers forms of expression, not ideas, procedures, methods of operation, or mathematical concepts as such; however, it refers, in defining the scope of protection, to Articles 2 through 6 of the Berne Convention[5], which address protected works, the possibility of limiting protection for certain works, the criteria for protection, the standards for protecting cinematographic and architectural works, as well as certain works of graphic and plastic arts, the guaranteed rights, the possibility of restricting protection for works of nationals from non-Union countries, and the determination of moral rights; In contrast, the WIPO Treaty introduced additional works necessitated by digital technology, emphasizing the need for their protection, primarily including:
1.1.1 Computer programs
It is noteworthy that the first agreement to include specific provisions regarding computer programs and classify them as protected works was the TRIPS Agreement,[6] unlike the Berne Convention and its subsequent amendments, and before the 1996 WIPO Copyright Treaty, as Article 10(1) of TRIPS affirmed that computer programs, whether in source or object code, are protected as literary works under the Berne Convention, and the 1996 WIPO Treaty reaffirmed this in Article 4, stating that computer programs are protected as literary works under Article 2 of the Berne Convention, irrespective of their mode or form of expression.
The European Court has supported this, stating in Case C 393/09 - Bezpečnostní softwarová asociace (BSA) that protection includes any form of expression of a computer program that allows replication in different computer languages, such as source code and object code. Preparatory design work, from which a program is later formed, is also included in the protection if the design is of this nature.[7]
It is pertinent to highlight several concepts closely related to computer programs and their legal study:[8]
Source Programs: The initial form of program writing in a programming language, varying in simplicity, complexity, and effectiveness in achieving the program’s purpose.
Object Programs (Machine Code): The form executable by computers.
Algorithms: A set of necessary steps to accomplish a task or calculation, either detailed initially or left for later elaboration; also defined as a sequence of instructions composed of logical and arithmetic structures representing numerous operations to achieve a specific result.
Programming Languages: A set of programs that convert high-level programming languages or assembly languages into machine code, generally categorized into three types: assemblers, compilers, and interpreters.[9]
1.1.2 Digital databases
The inclusion of databases as protected works under the 1996 WIPO Copyright Treaty necessitates reference to the TRIPS Agreement as the first to incorporate specific provisions for databases,[10] classifying them as protected works, as Article 10(2) of TRIPS states that databases, whether machine-readable or in any other form, constitute protected works if their content selection or arrangement represents intellectual creativity, under the Berne Convention’s provisions for literary and artistic works; however, this protection does not extend to the data or materials themselves and does not affect any pre-existing copyrights on such data, which was reaffirmed in Article 5 of the WCT, which clarified that databases or compilations of data enjoy the same protection as works under the Berne Convention if they constitute intellectual creations due to their content selection or arrangement; nonetheless, the constituent materials are excluded from protection, and the article emphasizes that such protection must not prejudice any copyrights applicable to the data or materials within the database. This was confirmed by the European Court in Football Dataco Ltd v Yahoo! UK Ltd (Case C 604/10), stating that the standard for copyright protection of a database depends on whether the selection and arrangement of the data within the database demonstrates the author’s intellectual creation, through freedom of choice and creative arrangement.[11]
1.2 Special provisions
To address the need for regulating copyright in the digital environment, the WIPO Copyright Treaty, in addition to the newly included works, established rules tailored to the intangible nature of digitally published works,[12] primarily encompassing the right of rental, the right of communication to the public, the comprehensive solution, limitations on rights in the digital environment, and technological protection measures and rights management information.
1.2.1 Right of rental
The Treaty includes a provision granting the right to rent digitally published works, as authors of literary and artistic works hold the exclusive right to authorize the public availability of the original or copies of their works; additionally, the Treaty grants authors of computer programs, cinematographic works, and works embodied in sound recordings (as defined by national laws of contracting parties) the exclusive right to authorize commercial rental of their works;[13] however, an exception applies if the computer program itself is not the essential object of the rental, or if the rental of a cinematographic work does not materially impair the exclusive reproduction right.[14]
1.2.2 Right of communication to the public
Article 8 of the WCT grants authors the exclusive right to authorize the communication of their works to the public by any means, including making them available in a way that allows access at a time and place have individually chosen, which aligns with the electronic publication of digital works on the internet, enabling public access per the user’s discretion;[15] nevertheless, the article underscores that this must not conflict with relevant Berne Convention provisions.[16]
1.2.3 The comprehensive solution
The 1996 WIPO Copyright Treaty adopted the “comprehensive solution” for digitally published works, granting authors the exclusive right to authorize the transmission and dissemination of their works by wire or wireless means, including digital transmissions, ensuring public access at any chosen time and place. National legislators retain the authority to define its legal nature, scope, and liability for infringement.[17] The European Court has upheld the provisions of the 1996 WIPO Copyright Treaty, in case C 306/05, SGAE v Rafael Hoteles S.A., brought by SGAE (a Spanish copyright management association) against Rafael Hoteles S.A., a hotel chain, because the hotel provided broadcasts of audiovisual works (such as films and music) via televisions in its guest rooms, on the basis that this constituted “communication to the public” and therefore required the authorization of the rights holders. The court upheld this view, as it was in line with Article 8 of the WIPO Copyright Treaty (WCT), which states that an author has “the exclusive right to authorize communication to the public of his works by any means, including making them available to individuals at a place and time of their choosing”.[18]
1.2.4 Limitations on rights in the digital environment
Article 10(2) permits member states to adopt exceptions and limitations for digitally published works, provided they align with the Berne Convention’s three-step test (no conflict with normal exploitation or unreasonable prejudice to authors’ rights).[19]
1.2.5 Technological Protection Measures and Rights Management Information
Negotiating parties agreed on the necessity of technological safeguards[20] complementing legal protections for digitally published works, as effective legal enforcement relies on such measures,[21] as the Treaty mandates member states to implement legal protections against the circumvention of technological measures and the removal or alteration of rights management information, deeming such acts copyright infringements.[22] This is what the European Court explicitly stated in the case of C 355/12, “Nintendo Co. Ltd and Others v PC Box Srl and 9Net Srl”, dated January 23, 2014, where it stated that technological measures protected under Article 6 must be designed to prevent or restrict unauthorized acts (reproduction, communication to the public, distribution, etc.) that require the right holder’s permission.[23]
2. The rules to be included in the Arab agreement
The WIPO Copyright Treaty of 1996 stands as one of the most prominent international treaties that established new rules for the protection of authors’ rights in the digital age, making it a benchmark for amending and adapting the Arab Copyright Agreement. A meticulous review of its provisions is essential to integrate the substantive norms introduced by the 1996 WIPO Treaty, particularly concerning the conditions for granting protection, digital rights, the presumption of ownership, protected works, exceptions and limitations, and technological protection measures.
2.1. Conditions for granting protection
International copyright treaties unanimously agree that any creative work meeting the formal and substantive conditions for protection deserves safeguarding,[24] including the 1981 Arab Copyright Agreement. However, its regulatory provisions fall short of encompassing newly emerging forms of creativity and their means of dissemination.
2.1.1. Originality
The 1981 Arab Copyright Agreement adopted the same foundational principle as relevant international copyright treaties—the criterion of originality, as it stipulated that intellectual creations must fulfill the condition of originality to qualify for protection, expressed through the term “innovation”, where the Agreement also embraced the broad approach of the Berne Convention by employing flexible terminology[25] capable of accommodating evolving developments, including digitally published works; In contrast, the 1996 WIPO Copyright Treaty implicitly addressed digitally published works under Article 8, which discusses the author’s exclusive right to exploit their work by any means, including electronic publication.[26]
The Arab Copyright Agreement relies on flexible wording to accommodate new intellectual creations, this does not exempt it from the need to adapt to emerging standards of originality for digitally published works, as adopting an expansive interpretation of originality—an example of disputes over computer programs brought before courts—is advisable; these rulings favored a broad understanding of originality,[27] shifting from the traditional notion of “intellectual effort” to “intellectual contribution”, as the former proved inadequate for new digital creations, which are characterized more by intellectual or mental contribution than sheer intellectual labor.[28]
Parallel to this, legal scholars, led by Counselor M. Jorqueres, argue that applying the classical standard of originality fails to protect works originating in the digital sphere, particularly those generated by machines; consequently, they advocate abandoning the classical criterion in favor of an impersonal standard, incorporating principles akin to those in industrial property law, as M. Jorqueres contends that the intellectual effort must surpass mere selection by the creator and incorporate an element of novelty or original work. In other words, objective concepts from industrial property law should be integrated with the notion of originality.[29]
In light of the above, it is advisable to reformulate Article 1 of the Arab Copyright Agreement as follows: “The authors of original intellectual creations shall enjoy full moral and artistic rights over their intellectual contributions...”.
2.1.2 The tangible embodiment of the work
The formal or tangible embodiment of a work is considered a prerequisite for granting legal protection under copyright law, as it signifies the transition of the work from the realm of thought into reality, acquiring a perceptible form,[30] as copyright law aims to protect the formal aspect of works rather than their content, leaving ideas[31] outside the scope of the literary and artistic property, which applies solely to the form ideas take and how they are expressed,[32] consequently, an author’s rights pertain to the tangible medium in which creativity manifests.
The Arab Copyright Agreement, in Article 1(c), stipulates that a work must have a tangible embodiment to qualify for protection; however, the agreement uses the term “material publicity”, which is likely a typographical error, with the intended term being “material support”, where an adopting the former term deviates from the objective of emphasizing the work’s tangible embodiment.
Assuming the correct legal wording of Article 1(c) is “material support,” influenced by the Berne Convention (Article 2(2)), this does not exempt it from the need for an amendment to align with contemporary copyright realities, as the emergence of an idea into existence is not limited to material existence but extends to perceptible existence, as the term “material existence” unduly narrows the scope of legal protection for certain works, such as the public recitation of the Holy Quran, which some copyright laws explicitly protect, because recitation lacks a material existence consistent with the internationally established interpretation of the term “expression of a work”, which refers to the means enabling a work to be perceived, whether physically or intellectually, including performance, recitation, fixation, material formation, or any other suitable method;[33] this interpretation was adopted by the WIPO Copyright Treaty of 1996, which, in Article 2, uses the term “expressions of works” to encompass all forms of creative manifestation; similarly, the Berne Convention (Article 2(2)) references this in the context of protecting works like publicly delivered speeches and lectures.
Moreover, the tangible embodiment of a digital work entails its occupation of a specific space in the digital medium, whether online (on the internet) or offline[34] (such as CDs, floppy disks, or hard drives); thus, the embodiment of a digital work poses no issue, as it remains perceivable by the public, therefore, it would be preferable to draft Article 1 of the Arab Copyright Agreement as follows:
“Authors of original creations shall enjoy full moral and artistic rights over their intellectual contributions from the moment of cr
Securing Electronic Data and Safeguarding Personal Privacy in the Digital Environment (Pursuant to the Provisions of Algerian Law No. 18-07 on the Protection of Personal Data)
Full text linkIn the context of rapid digital advancement, securing data has become a central concern for both individuals and institutions. Data security refers to a broad set of technical and organizational practices aimed at preventing unauthorized access, alteration, or destruction of information. Rather than relying solely on encryption or access control tools, effective data protection involves a multilayered approach that includes user awareness, preventive policy frameworks, and continuous monitoring.
Modern challenges to data security are increasingly complex due to the exponential growth of digital information and the evolving nature of cyber threats. Attackers now exploit vulnerabilities using sophisticated techniques, often bypassing traditional defenses. This highlights the urgent need for proactive strategies that combine technological safeguards with human-centered practices such as employee training and ethical data handling.
Furthermore, the legal dimension of data security has gained prominence, with many jurisdictions enforcing stricter regulations to protect individuals’ rights. Legal compliance—particularly with frameworks like the General Data Protection Regulation (GDPR)—is no longer optional but essential for maintaining organizational credibility and avoiding penalties.
Ultimately, securing data in today’s interconnected world requires an ongoing commitment. It is not a fixed goal but a dynamic process that evolves with technological, legal, and social developments. Ensuring data security strengthens public trust, reinforces privacy principles, and lays a solid foundation for sustainable digital transformation.
Keywords: Data, privacy, personal information, security, digital age, protection of personal data.
Introduction
Data and information constitute one of the most critical pillars of any company, often regarded as its most valuable assets. In the event of a breach, a company is bound to incur substantial losses, with its reputation inevitably damaged. Failure to address such breaches and their consequences effectively could result in the leakage of client data and information, ultimately leading to the company’s collapse. Therefore, protecting the IT infrastructure that houses this data becomes imperative.
With the global escalation of cyber-attacks, the demand for security products and services has risen significantly, driven by persistent threats and the evolving nature of cyber-attack patterns.
Data security encompasses the protective strategies implemented to shield data from unauthorized access, ensuring the confidentiality, integrity, and availability of databases. Optimal methodologies in data security include techniques such as data encryption, key management, data masking, data subsetting, and data redaction, alongside controls for privileged user access, auditing, and monitoring.
Data, being a vital asset of any firm, must be safeguarded against unwanted access. Data breaches, unsuccessful audits, and non-adherence to regulatory mandates can lead to reputational harm, forfeiture of corporate ownership rights, compromised intellectual property, and penalties for regulatory non-compliance.
Under the General Data Protection Regulation (GDPR) of the European Union, data breaches may incur fines of up to 4% of an organization’s global annual turnover, frequently resulting in significant financial losses. Financial information, medical records, intellectual property, and personally identifiable information (PII) are all considered sensitive data. Safeguarding this data is crucial to avert breaches and maintain regulatory compliance.
Databases function as essential storage of sensitive information, rendering them a primary target for data thieves. Data intruders are often classified into two categories: external users and internal users.
External users include various entities, such as individual hackers and cybercriminals, that seek to disrupt business operations or attain financial profit. They encompass organized crime syndicates and state-sponsored organizations aiming to perpetrate fraud or instigate disruptions on a national or global level.
Internal users may encompass current or former workers, inquisitive persons, clients, or partners who misuse their position of trust to appropriate data or whose mistakes accidentally result in security breaches. Both external and internal users present threats to the security of personal data, financial information, trade secrets, and regulated data.
The safeguarding of personal data has become increasingly crucial in the contemporary digital age. Due to swift technological improvements and the pervasive usage of the internet, individuals frequently disclose their personal information online. Personal data is collected, kept, and utilized by multiple entities across social media platforms and e-commerce websites, frequently without explicit consent or awareness. This engenders significant privacy issues and underscores the necessity for robust safeguards to protect personal information.
In the contemporary digital era, data functions as the essential resource for enterprises, governments, and individuals. Data, encompassing sensitive consumer information and intellectual property, constitutes the foundation upon which institutions function and make pivotal decisions. Nonetheless, due to the increasing dependence on technology and a continuously changing threat environment, the significance of data security is paramount. It is no longer solely about safeguarding sensitive information; it has become a strategic necessity that can influence an organization’s reputation, financial viability, and potentially its survival.
To address the increasing risks to the privacy and confidentiality of personal data in the digital realm, a number of international organizations have put forward and implemented policies. The Organization for Economic Co-operation and Development (OECD) has underlined the necessity of bolstering the right to privacy in order to facilitate the unrestricted flow of personal data. Similarly, the UN General Assembly established rules for the control of personal data files in its Resolution 45/95.
The European Union established regulations to safeguard individuals against the processing of digital data. Numerous countries have also enacted legal provisions to safeguard personal data. Algeria, like other nations, has prioritized the establishment of a legal framework to protect individuals’ personal data.
Study Problem
This study seeks to analyze the procedures and techniques for safeguarding personal data under Algerian law by evaluating the principal aspects and clauses of Law No. 07/18, enacted on June 10, 2018, about safeguarding people when processing their personal information.
This leads us to the following key question: How has the Algerian legislator secured digital data to protect individuals’ personal privacy?
We have structured this article as follows:
The conceptual framework for personal data
The legal framework of the National Authority for the Protection of Personal Data;
Procedures for processing personal data
Methodology
The research employs a doctrinal legal methodology, centered on the analysis of primary and secondary legal sources, including the Algerian Constitution, Law No. 18-07 on the protection of personal data, and related legislative acts. This approach is complemented by the examination of international instruments such as the GDPR, OECD guidelines, and UN resolutions, which provide a comparative framework for situating Algerian law within broader international standards. The study also incorporates a critical interpretative dimension by evaluating the institutional independence and effectiveness of the National Authority for the Protection of Personal Data. This combined approach ensures both descriptive and analytical insights, allowing the research to highlight legal strengths while identifying potential gaps in implementation.
1. The Conceptual Framework for Personal Data
1.1 Definition of personal data
Maintaining a person’s right to privacy depends critically on the protection of their personal information. National legislatures have therefore quickly passed legislation to protect individuals while collecting personal data. The Algerian lawmaker who passed Law No. 18-07 on June 10, 2018, regarding the protection of natural persons in the use of personal data is one example. This law established the “National Authority for the Protection of Personal Data”, a crucial organization to protect the handling of personal data while respecting people’s right to privacy.
Any information, regardless of type, that directly or indirectly relates to an identifiable individual is referred to as personal data. An identifying number or other components of a person’s physical, physiological, genetic, biometric, psychological, economic, cultural, or social identity can be used as the primary means of identification.
Based on this definition, personal data is categorized into two main types:
Direct Personal Data: This includes data of an explicit personal nature, such as names, surnames, postal and email addresses, genetic data, health records, criminal records, personal photographs, civil status, résumés, birth dates, places of residence, and workplaces.
Indirectly identifiable information includes things like phone numbers, social security numbers, national identity card numbers, passwords, bank account numbers, fingerprints, genetic profiles, and biological and biometric data.
1.2 Enshrining the protection of personal data in Algerian law
In compliance with Article 46 of the 2016 amended Algerian Constitution, the National Authority for the Protection of Personal Data was established by the Algerian parliament. This was aimed at striking a balance between the requirements of public security on the one hand and the rights and freedoms of individuals on the other.[1] This principle was reaffirmed in Article 47 of the 2020 Algerian Constitution.[2]
The National Authority is an independent administrative body in charge of safeguarding personal information. It operates without administrative or hierarchical oversight and has legal individuality as well as financial and administrative autonomy.[3] The President of the Republic appoints the “National Authority”, an independent administrative body for the protection of personal data, as specified in Article 22 of Law No. 18-07. The Authority, which has its headquarters in Algiers, is financially and administratively independent in addition to having legal individuality. The budget is subject to the relevant financial control regulations and is part of the state budget.
In the framework of processing personal data, the law created a number of measures to protect persons. The establishment of the National Authority for the Protection of Personal Data is among the most crucial mechanisms. The Authority is designated as an autonomous administrative entity, possessing legal identity, as well as financial and administrative autonomy.
This study’s significance pertains to the regulations governing the Authority’s autonomy, which constitute a key feature distinguishing it from other traditional administrative bodies in the state. However, despite the formal aspects of independence reflected in various provisions, this independence is, in practice, relative and closer to a theoretical ideal than a tangible reality.
2. The Legislative Framework for the National Authority for the Protection of Personal Data
2.1 The legal framework for the protection of personal data
A successful legislative framework for personal data protection necessitates the presence of procedures and resources for proper implementation and oversight to ensure the correct application of the law. Personal data protection cannot be achieved without establishing an administrative body responsible for enforcing the rules and provisions of the law.
Article 23 of Law No. 18-07 stipulates the formation of this administrative body, consisting of 16 members, appointed by presidential decree. While the president is responsible for appointing the chairperson of the authority, the members are selected by their peers from within the councils to which they belong. The composition is as follows:
Six advisors, including:
Two current or former members of the Council of State, with a rank no less than that of an advisor;
Two current or former members of the Court of Cassation, with a rank no less than that of an advisor;
Two current or former members of the Court of Auditors, with a rank no less than that of an advisor;
The general assembly of each distinct institution elects these members.
2.2 Composition of the National Authority for the Protection of Personal Data
Regarding the nomination process for each member, the Algerian legislator specifies that the composition of the Authority includes:
The President of the Republic nominated three people, including the president, from among specialists in the operations of the National Authority;
The High Judicial Council selected three Supreme Court and Council of State judges.[4]
The Authority is also empowered to seek assistance from any qualified individual for consultation and support in carrying out its duties. Additionally, it includes an executive secretariat and personnel employed to assist the executive body in fulfilling its responsibilities.[5]
Referring to the composition of the National Authority, the Algerian legislator required that the Authority be supported by specialists. While the legislation allows for external consultation, it would have been preferable to explicitly include university professors and researchers specializing in rights, freedoms, and information technology. Their expertise, particularly in comparative legislation and studies conducted in this field, could greatly enhance the Authority’s effectiveness.
The Algerian legislator specified the appointment of three experts in the Authority’s field of work, reflecting the multidisciplinary nature of its jurisdiction, which encompasses judicial, quasi-judicial, and administrative domains. Notably, in some legislations, bodies tasked with protecting personal data are granted extensive regulatory and executive powers, including criminal penalties for non-compliance with the Authority’s orders.[6],[7]
Under the Algerian legal system, the President of the Republic is given the power to choose the Authority’s president. This centralization of appointment authority risks undermining the independence of the Authority in implementing its decisions. The legislator limited the President’s role to appointing, renewing membership, and terminating appointments through a presidential decree, requiring the Authority to submit an annual report to the Republic’s President.[8]
The Authority is tasked with issuing opinions on the data processing activities referenced in Articles 31 and 32 of Law No. 18-07. Additionally, it develops and publishes guidelines, recommendations, and standards to facilitate compliance with personal data protection regulations. It is also responsible for conducting preliminary risk assessments related to data processing activities by data controllers and their contractors.
It is primarily an ethical rather than a legal requirement for members of the National Authority for the Protection of Personal Data to take an oath. This reinforces their commitment to exercising their legal powers with impartiality, objectivity, and integrity, particularly regarding confidential information. Such an approach ensures that all members of the Authority remain independent and are not subject to any oversight or external control.
Before beginning their duties, members of the National Authority are sworn in at the Algiers Court of Justice.[9] However, it is noteworthy that the process of election is absent in determining membership within the Authority. The Algerian legislator established a five-year term for membership, subject to renewal,[10] comprising people chosen for their legal or technical proficiency in personal data protection.[11]
The concept of competence underpins membership in the National Authority for the Protection of Personal Data.[12]
3. Procedures for Processing Personal Data
3.1 Processing of personal data
All grievances and inquiries submitted by data subjects, organizations, associations, or entities are addressed through the examination and verification of the complaint’s subject matter. The complainant is informed of the investigation’s progress and results within a designated timeframe. The Authority addresses requests for opinions from public bodies and courts as needed and offers consultations to persons and organizations engaged in or intending to engage in automated personal data processing.
In accordance with Article 40 of the Code of Illegal Procedure, the Authority promptly informs the Public Prosecutor of any illegal activities or violations. Moreover, under Article 19 of Law No. 87-17, the Authority may issue a special decision assigning one or more of its members or the Secretary-General to carry out investigations or delegate its agents and departments to conduct verification procedures. When required, it may also obtain copies of all relevant documents and informational materials necessary for its mission.
The Authority may create a list of data processing operations that are anticipated to pose major risks, which must undergo prior consultation as mandated by Article 90 of Law No. 87-17. Furthermore, Article 25, paragraph 1, of Law No. 18-07 mandates that the National Authority for the Protection of Personal Data ensure compliance with the legislation pertaining to personal data processing as specified in Law No. 18-07. It also ensures that the utilization of information and communication technology does not jeopardize individual rights, public liberties, or personal privacy.
The Authority may offer recommendations and adopt individual or regulatory decisions as mandated by law in the execution of its responsibilities. Furthermore, the Authority presents an annual public report to the President of the Republic and the Prime Minister, outlining the fulfillment of its purpose.
3.2 Role of the data controller
The National Authority for the Protection of Personal Data and the data controller must collaborate. The Authority’s operations are considered to be hampered by any interference with its operations, such as preventing on-site investigations, denying its members or agents access to necessary documents, giving information that conflicts with records that were already in existence at the time of the request, or failing to provide clear and straightforward information. Additionally, submitting incomplete or intentionally erroneous documents to obscure the truth constitutes an offense punishable under Article 61 of Law No. 18-07.
Furthermore, the Authority’s operations are governed by a set of regulations. The president of the National Authority must respond expeditiously and guarantee the confidentiality of personal data accessible in the course of their responsibilities, even after their term ends. The president and members of the Authority are prohibited from holding any interests in organizations that operate within the domain of personal data processing.
The Authority is responsible for the construction and maintenance of a National Register for the Protection of Personal Data. This register contains all statements made to the National Authority, authorizations granted, regulatory texts pertaining to public records, and other pertinent information. The register is accessible to individuals in accordance with legal and regulatory procedures.
The National Authority for the Protection of Personal Data is authorized by Law No. 18-07 to allow data controllers to transfer personal data to other countries, provided that the Authority determines that the recipient country offers a sufficient degree of protection for people’s privacy, fundamental freedoms, and rights, along with appropriate security measures. Additionally, the Authority must confirm that neither public safety nor the state’s fundamental interests are jeopardized by the transfer.
But there are exceptions to every rule. In certain circumstances, data controllers may transmit personal data to a nation that does not fit the above-listed requirements, including:
The specific agreement of the person in question;
Situations in which the transfer is essential to safeguard an individual’s life or uphold the public interest;
The execution or conclusion of contracts;
The execution of initiatives pertaining to international judicial collaboration;
Identifying, diagnosing, or treating illnesses;
Adherence to bilateral or multilateral agreements in which Algeria has participated.[13]
Law No. 18-07 offers essential safeguards for national data that was once available to foreign entities operating in Algeria, including telecommunications firms, internet service providers, and embassies managing several visa applications daily. Without laws that forbid such actions, these apps frequently include private information that may be readily exported to other nations.[14]
Monitoring the post-processing operations is one of the responsibilities given to the National Authority. The National Authority is tasked with a number of duties under Article 25 of Law No. 18-07, including consulting with people and organizations that process personal data or carrying out research or trials that could result in such processing. It also manages complaints, appeals, and objections pertaining to the processing of personal data, making sure that people are aware of the results.[15]
The Authority instructs persons and data controllers regarding their r
Human Safety as a New Principle of International Cooperation
Full text link Human safety (HS) is a relatively new doctrine that emerged at the end of the 20th century. It arose from the need to address global threats and to better understand worldwide problems. Human safety is a human right; it refers to the safety of people and communities, as opposed to that of states. The concept of human security recognizes several dimensions of safety, including freedom from fear, freedom from want, and freedom from indignity.
Our study concerns the concepts of individual entitlements and individual safety, which are strongly supported in the discourse of international law. The safety of individuals has long been a central concern of the global community, first through the League of Nations and later under the United Nations. The concept of universal individual entitlements has opened the way for new rules in international law. Safeguarding these basic entitlements is no longer solely the responsibility of an individual’s state; it has become a shared interest of the entire international community. From this perspective, we call for recognizing the concept of individual safety as a customary rule capable of stopping the continuous attacks on humanity.
Keywords: Human safety (HS), emergence, international law, aggression, international community, cooperation.
Introduction
The ideological struggle imposed by the Cold War, along with the threat of nuclear weapon use, has given way to more fundamental but no less significant concerns. The scourges of disease, hunger, crime, political repression, natural disasters, and terrorism have become an integral part of individuals’ daily realities. The focus of our research centers on two concepts that warrant clear definition: human entitlements (HR) and human safety (HS), the latter progressively emerging in the global discourse on the safeguarding of fundamental individual entitlements and individual dignity.
In this context, the concept of the “universalization of individual entitlements” has paved the way for the emergence of a new norm in international law, whereby the safeguarding of an individual’s fundamental entitlements no longer rests solely with the authority of the state of which they are a national, but concerns the global community.
Thus, the question arises as to whether the emergence of the concept of human safety (HS) as a new customary rule could generate sufficient practice to curb the recurrent violations against humanity.
Methodology
The study relies on a doctrinal legal analysis of primary international instruments (UN Charter, Universal Declaration of Human Rights, ICCPR/ICESCR, Geneva Conventions and Additional Protocols) and “soft law” documents (ICISS/R2P reports, UNDP/CHS frameworks). It also applies the historical method to trace the evolution from state-centric security to the concept of human security. In addition, a comparative policy analysis is employed to assess regional frameworks (EU, AU, Arab League) and institutional practices (UN Security Council, IMF/World Bank). The article combines descriptive and analytical synthesis, drawing on primary sources (international treaties, UNGA and UNSC resolutions, ICJ jurisprudence such as the Nicaragua case) and authoritative academic and agency reports, to formulate normative recommendations on codifying and operationalizing human security. The research does not use quantitative empirical methods; its focus is on conceptual delimitation (HS–HR; HS–R2P) and policy implications.
1. Clarification of the Concepts of Human Safety (HS) and Human Entitlements (HR)
1.1 The naturalization of man and his entitlements
The notion of HS and HR stems from natural law theory as articulated by Grotius and is defined as a set of prerogatives inherent to every individual. According to Nicolas Valticos, “the concept of HR extends beyond the entitlements of individuals to encompass entitlements that man can and must enjoy either directly or through the communities to which he belongs”. Furthermore,[1] Amartya Sen adds that “The concept of HR is fundamentally normative, which means that it is not clear which specific freedoms are so important that society must recognize, safeguard, and promote them as HR. This is where the idea of HS can really help by showing how important it is to not have basic factors of unsafety, both new and old”.[2]
In other words, HS redirects the global safety discourse toward the core of individual dignity, the recognition of public freedoms, inherent individual entitlements, and the responsibilities of states and intergovernmental organizations to ensure the effective respect of these entitlements. Indeed, HR has historically been established with reference to the natural right to safety; therefore, all states are required by law to abide by their normative principles, whether they are in conflict or at peace.
A significant development is the emergence of a universally recognized principle, abstract in nature, yet endowed with absolute value: individual dignity. It represents the primary and fundamental intuition underlying HR and serves as the foundational reference that gives meaning to all other entitlements. It is this principle that legitimizes the very concept of HR.[3] According to Yves Madiot, HR are subjective entitlements that reflect, within the legal framework, the natural principles of justice that underpin the person.[4]
In this regard, the Universal Declaration of HR (UDHR) of 1948 rightly asserts that “All people are born free and equal in entitlements and dignity, and they all have reason and conscience”.[5] It is based on this premise regarding the universal attributes of individual nature that a new understanding of a decent life has been shaped. These shared attributes translate into common needs inherent to the individual person and dignity, capable of ensuring the conditions necessary for a decent life.
Regarding these needs intrinsic to the individual being, two main categories can be distinguished, corresponding to the first two generations of HR: fundamental freedoms (linked to the respect of civil and political entitlements) and a minimum level of economic safety, or subsistence[6] (guaranteed by the respect of economic entitlements). Without the fulfillment of these universal primary needs, individual dignity is difficult to conceive.[7]
It is observed that the concept of HR encompasses a range of fundamental entitlements essential for a minimally decent life, Including, The rights to life, personal safety, including physical integrity, freedom from torture and other cruel, inhuman, or degrading treatment, equality before courts and tribunals, freedom from slavery, protection from systematic and harmful discrimination and persecution, and freedom of thought, conscience, and religion are just a few examples; and, finally, the right to property. Regarding economic entitlements,[8] it is clear that the concept of HR is dynamic and evolving,
with the list and scope of these entitlements expanding as new entitlements are frequently added to existing ones. The question then arises: can HS be considered one of these entitlements?
1.2 The concept of human safety (HS)
1.2.1 Definition of the concept
According to the Robert dictionary, safety is defined as the absence of actual danger, poverty, and any apprehension. The concept of HS is therefore founded on the principles of individual emancipation liberating individuals from fear and want, and social justice.[9] However, the initial idea of HS dates to the eighteenth century, when thinkers had already developed ideas concerning the safeguarding of individuals.
At the global level, controversy remains intense. HS may be perceived as reflecting a global willingness to intervene, potentially disregarding the principle of state sovereignty when populations are in distress.[10]
It is important to emphasize that this concept intensifies the debate surrounding one of the most contentious issues in global politics since the end of the Cold War: the “right or duty of humanitarian intervention”.[11] This issue confronted the global community in the early 1990s in response to the tragedies in Kurdistan, Somalia, Rwanda, and the former Yugoslavia. The debate on humanitarian intervention gained renewed prominence in the 1990s, particularly in the wake of crises in Rwanda and the former Yugoslavia, and was strongly advanced by French jurist Mario Bettati, who theorized the “right of intervention” as a novel transformation of the global order.[12]
The concept revitalizes and enriches this debate by providing new foundations, which have contributed to the emergence of a developing normative framework embodied in the “Obligation to Safeguard”.[13] This idea says that sovereign states must safeguard their citizens from disasters that could have been avoided. If they can’t or won’t do this, the global community is responsible for doing so.[14] Recent scholarship reinforces this link: as Lau (2023) argues, operationalizing Human Security provides the analytical lens to detect risks to individuals, while the Responsibility to Protect supplies the political and legal duty to act upon those risks, thereby making the two concepts mutually reinforcing in both theory and practice.[15]
The reports of the Global Commission on Intervention and State Sovereignty (ICISS) in 2001 introduced an innovative approach by seeking to resolve the theoretical debate between proponents of state sovereignty and advocates of intervention for civilian protection purposes.[16] In this context, can we assert that the obligation to safeguard, a necessary complement to the concept of HS, is intrinsically linked to the exercise of state sovereignty?[17] As a corollary to this premise, what are the criteria or conditions that objectively qualify the obligation to safeguard as a guiding principle for the implementation of such safety?
1.2.2 Birth and evolution of “human safety” (HS)
The concept of safety lies at the foundation of modern state theory, particularly since the primary mission of the state is to safeguard members of the community, who, in return, owe it allegiance.[18] The right to safety is enshrined in Article 2 of the French Declaration of the Entitlements of Man and of the Citizen of 1789, affirming it as a natural and inalienable right.[19] The notion of safety was also central to a broad spectrum of philosophical discourse and to principles governing warfare.
1.3 Philosophical origins of human safety (HS)
The initial conception of HS dates to the eighteenth century, when thinkers began to focus on the safeguarding of individuals. Many fundamental principles of HS draw on the reflections of Montesquieu, Rousseau, Smith, and Condorcet. Montesquieu emphasized liberty and the subjective entitlements of individuals rather than the safety provided by the state. For Adam Smith, safety meant safeguarding against “violent and sudden attacks upon the person or property”.[20] Condorcet described a social contract in which the safety of individuals was the foundational principle; in his view, if individuals live in fear, they cannot effectively participate as members of a political community.[21]
However, these liberal convictions were not universally accepted. Thinkers such as Hobbes, Kant, and Grotius argued that the state’s monopoly on violence was the best means to end anarchy and prevent the law of the strongest from prevailing.
For Hobbes, safety is synonymous with civil peace, under whose safeguarding the parties to the “social contract” enjoy their natural entitlements.[22] He argued that the state of nature was essentially a form of anarchy characterized by the domination of the strong over the weak, ultimately resulting in a perpetual state of war. Everyone is driven by a desire for power and the capacity to ensure self-preservation. Indeed, the primary purpose of the social contract is to escape this anarchic condition and guarantee safety.[23] According to Rousseau, however, the state of nature is portrayed in a more peaceful light. Man enjoys perfect freedom, and the exercise of this freedom by each individual leads to equality. For Rousseau, the establishment of civil society necessarily requires the conclusion of a “social contract” that serves not only to ensure safety for individuals but also to create a political society. Moreover, the social contract represents a voluntary submission to a law to which all have consented, as everyone retains a portion of sovereignty.[24]
Kant was worried about the role of the state in keeping people safe. He imagined a higher authority: a world society based on the moral duty of the common good for its member nations. Grotius thought that the shared interests of independent states should safeguard everyone.[25]
It can be said that the influence of these philosophical currents on the notion of HS is reflected in early treaties concerning the safeguarding of individuals, particularly the Geneva Conventions of April 24, 1863, which represented the first attempts to codify the laws and customs of war.
From traditional safety to human safety (HS)
Historically, safety primarily depended on relations between groups of states. In this traditional framework, the concept of the balance of power played a critical role in ensuring the safety of populations. States were viewed as rational entities, and safety was understood chiefly as safeguarding against invading armies.[26]
These ideas were incorporated into the Covenant of the League of Nations, which further developed the concept of safety, later upheld by the United Nations. The UN legally prohibited any state from resorting to force in global relations for the first time (Articles 2 and 4). Indeed, the traditional conception of safety remained essentially military and state-centric until the 1980s.[27]
Following the fall of the Berlin Wall and the end of the Cold War, the acceleration of economic globalization prompted a reevaluation of the meaning of safety.[28] As Durand (2003) observes, this shift illustrates the coexistence of different approaches to security—state-centered, military definitions on the one hand, and human-centered, multidimensional perspectives on the other.[29] This new perspective calls for addressing not only the physical safety of individuals but also their economic and social well-being, as well as respect for their dignity and values as individual beings.[30] Consequently, the concept of safety is grounded in the principles of individual emancipation by “liberating from fear and want” and social justice.[31] Thus, the focus has shifted from state safety to the safety of individuals.
1.4 Human safety (HS) in its broad and narrow senses
Since the last decade of the 1900s, Kofi Annan, the Secretary-General of the United Nations, has talked about making the idea of HS clearer in his Report on the Organization’s Activities. He said that it is no longer enough to say that collective safety is just the absence of armed conflict, whether it is between countries or within a country. HR abuses, huge population movements, global terrorism, the AIDS pandemic, drug and arms trafficking, and environmental disasters all directly threaten our safety. This means we need to work together on a lot of different issues.[32]
Within this context, the concept of “HS” centers the individual in the analysis, focusing on threats to the individual’s well-being and physical safety.[33] It makes clear that the goal of HS is to safeguard the most important parts of people’s lives in a way that makes it easier for people to exercise their entitlements and grow.[34]
The broadest definition of HS was formulated in 1994 by the United Nations Development Programme (UNDP), Jorge Nef, and the Commission on Human Safety (CHS). A key point emphasized by the UNDP is the dual focus on first, safeguarding against chronic threats such as famine, disease, and repression; and second, safeguarding against sudden, violent events that disrupt everyday life.[35] In this UNDP definition, HS is linked to seven dimensions, each corresponding to specific types of threats:
Economic stability, threatened by poverty;
Food stability, threatened by famine;
Health safety, threatened by injury and disease;
Environmental safety, threatened by pollution, environmental degradation, and resource depletion;
Personal stability, threatened by various forms of violence;
Political safety, threatened by repression;
Community safety, threatened by instability and civil unrest.[36]
Regarding the second point, HS in its broader sense is reflected in the priority given to the “vital essentials of individuals”, a fundamental element that distinguishes HS from individual development.[37] As David and Rioux (2001) argue, the notion of human safety represents a new conception of international relations, one that redefines global security by centering the individual rather than the state.[38]
It should be emphasized that HR and HS exist in a synergistic relationship. HS helps identify entitlements that are at risk in a specific context, while HR provides guidance on how HS should be safeguarded.[39] This relationship was articulated during a seminar organized in 2001 in Costa Rica by the CHS, in response to the call of the United Nations Millennium Summit by Secretary-General Kofi Annan. Addressing two major themes, the unsafety caused by conflict and violence on one hand, and the connections between safety and development on the other Commission was tasked with developing a concept of HS that could serve as a practical tool for the development and implementation of policies. Based on this mandate, the Commission was asked to propose a concrete program of recommendations to address the most critical and widespread threats to HS.[40]
After this call, the CHS said that “HR and the qualities associated with individual dignity make up a conceptual reference point and a normative framework that are necessary to comprehend and implement the HS notion”. Likewise, whilst recognizing that the standards and tenets of global civilian protection law are crucial elements in understanding HS, the Commission emphasized that HS cannot be confined solely to current or past armed conflict situations. Rather, HS is a concept that must be applied universally.[41]
Furthermore, recent publications by the UN Office on Human Security underscore new debates and implementation trends in Human Security, emphasizing interconnected crises—such as climate change, inequalities, displacement, health-system fragility—and reaffirming the necessity for global cooperation to address them. For instance, UNDP’s 2024 informal plenary meeting highlighted how a “human security lens” can help in formulating early warning systems and structuring policy responses that integrate prevention, protection, and dignity.[42]
As highlighted by the UNDP (2022) Special Report on Human Security: New Threats to Human Security in the Anthropocene, “people’s sense of safety and security is at a low in almost every country, including the richest countries, despite years of upward development success”. This finding illustrates that despite decades of development progress, insecurity remains pervasive, reinforcing the urgency of embedding HS as both an analytical lens and a guiding principle of international cooperation.[43]
However, the narrow interpretation of the concept of HS focuses primarily on violent threats directed at individuals. This limited definition constrains the scope of HS to specific parameters, such as drug trafficking, small arms proliferation, landmines, ethnic conflicts, terrorism, individual trafficking, or state failure, as noted by former Canadian Foreign Minister Lloyd Axworthy. Addressing these threats relies chiefly on diplomatic resources, economic persuasion, intelligence gathering, and information technologies.[44]
In fact, most significant advancements made under the banner of HS have been based on this restricted understanding. Examples include the Mine Ban Treaty, the establishment of the Global Criminal Court (ICC), as well as recent global initiatives concerning child soldiers, small arms control, and the role of non-state actors in conflicts, all of which reflect the narrow interpretation of the HS principle.[45]
Ultimately, it is important to observe that the globalization of risks and threats, the complexity of conflicts, terrorist attacks, and mass civilian massacres have driven the global community to develop legal instruments addressing three key dimensions of the issue:
The safety of populations as a legitimate legal concern;
Safeguarding as an obligation that is both moral and legal;
Obligation as a political principle intrinsically linked to the exercise of sovereignty.[46]
2. The Global Safeguarding of Human Entitlements (HR): An Obligation That Is Both Moral and Legal
2.1 Human safety (HS) in global relations
2.1.1 Human safety (HS) as a new principle of global cooperation
HS can therefore be understood as a fundamental link between the various objectives of the United Nations, creating an obligation for Member States to cooperate in advancing these goals coherently. On this basis, HS helps identify HR that may be at risk in specific situations. It provides new tools and drives significant changes in global practice.
In this regard, strengthening global peace is a universal necessity in addressing the challenges of safety and development. It follows that the participation and engagement of all members of the global community, whether states, non-governmental organizations, or other civil society actors, are essential obligations to achieve a HS framework.[47]
It is important to note that several norms, principles, and institutions are already established; for example, civilian protection assistance during natural disasters and t
სამედიცინო მომსახურების ხელშეკრულების მხარეები და მათი ძირითადი ვალდებულებები, უპირატესად, ქართული და გერმანული სამართლის მაგალითზე
No full textCreating a legal framework to regulate contractual relations between patients and healthcare providers, or improving the existing one, is the main task of any legal system. In this process, it is necessary to take into account the specifics of legal relations, analyze the challenges in practice, and based on them, determine the rights and obligations of the parties on a fair basis.
This article analyzes the legal and factual situation of the parties to a medical service contract, the challenges they face, and ways to overcome them. Special attention is paid to the issue of providing medical services to minors and patients who cannot make informed decisions, and the scope of participation of their parents, legal representatives, and relatives in this process.
In addition, the article discusses the main obligations of the medical service provider. Of course, the specific rights and obligations of the parties are determined in each case based on their needs and an individual contract. However, in this case, the legal and ethical obligations common to any medical service contract are analyzed, namely the obligation of the medical service provider to inform the patient, take care of him, protect confidentiality, and maintain medical records.
The article is mainly prepared according to Georgian and German law, although for comparison, common law doctrine and the experience of other countries (including post-Soviet ones) are often used.
Keywords: Medical law, parties to a medical service contract, patient representation, basic obligations of a doctor.
Introduction
The regulation of relations between the patient and the medical service provider has great importance both for the parties themselves and for the state.[1] The World Health Organization (WHO) emphasizes in its constitution that health care includes not only the existence of an effective health system, but also the ability to access it,[2] which is only possible under the conditions of a relevant legal order.
In practice, the relationship between the physician and the patient is primarily regulated by a medical services contract.[3] However, the formation of a specialized legal framework governing such contracts remains a significant challenge for Georgia, a country with a developing legal system. The legal doctrine in this field is still in the process of formation,[4] which in practice often leads to ambiguity and creates a risk of unjustified infringement of the parties’ interests.
Considering the above, the main research question of this article is what fundamental legal principles and obligations should underlie the medical services contract in order to ensure high-quality medical care, contractual fairness, and equality between the parties. It should be taken into account that, in most cases, a patient’s decision to seek medical assistance is driven by the need to avoid a threat to their life or health. Consequently, in practice, the patient is effectively compelled to accept the contractual terms offered by the medical service provider, which are often aimed at transferring contractual risks to the patient and minimizing the physician’s liability. Therefore, it is essential to determine which obligations constitute the core duties of the parties to a medical services contract, which may not be excluded or limited by agreement, and what mechanisms should be established to ensure the genuine protection of the patient’s autonomy.
The above is particularly important in the case of minors and patients who lack the capacity to make informed decisions, in whose treatment process third parties are actively involved. In this regard, it is important to clarify to what extent a minor has the authority to decide independently on the receipt of medical services, and to what extent the parents, legal representatives, or relatives should be involved in the treatment process. It is also necessary to determine whether the consent of one parent is sufficient for the treatment of a minor, and how the medical service provider should act if the requirements of the patient’s legal representative do not correspond to the needs of treatment. These issues are also important in the case of patients who cannot make informed decisions.
It should be noted that, in the course of medical treatment, particular importance is attached to the patient’s informed consent, the duty of care, the obligation of confidentiality, and the maintenance of medical documentation. Accordingly, one of the main parts of this study is to determine the content and scope of these obligations.
Accordingly, this study aims to address the above-mentioned questions and to develop recommendations for improving the legal framework governing the relationship between the patient and the medical service provider, based on an analysis of their legal and factual status and a comparative examination of Georgian and foreign, primarily German, law.
The scientific novelty of the present study lies in its examination of the need to recognize the medical services contract as a distinct legal category, approached through both dogmatic and comparative legal analysis, with particular consideration of the German model. The study of this need is important not only for Georgia, but also for other countries whose laws do not separately regulate the medical service contract as a special type of contract. The novelty of the study is also manifested in the fact that, for the first time, an integrated analysis is made of the issue of the weak pre-contractual status of the patient, the authority of minors, and the legal protection of patients lacking the capacity to make informed decisions.
Accordingly, the study has considerable theoretical and practical significance. From a theoretical perspective, it examines, through a comparative legal approach, the subjects of the medical services contract, their interests, and their core obligations, issues that have not yet been fully explored in Georgian law. From a practical standpoint, the results of the research may serve as supporting and interpretative material for the refinement of judicial practice and the improvement of the legal framework.
Literature Review
Georgian legal doctrine is not distinguished by an abundance of scholarly research on patient rights or medical law. The existing literature mainly focuses on the problem of compensation for damage caused by medical malpractice.[5] Accordingly, less attention has been devoted to the contractual relationship between the patient and the medical service provider, and the existing studies address only specific elements of this relationship (e.g., informed consent, the protection of minors, and similar aspects).[6] Particularly few studies examine specific issues of medical law from a comparative legal perspective.[7] The German legal doctrine is comparatively more developed in this field. Following the 2013 legislative reform, paragraphs 630a–630h were added to the German Civil Code (BGB), thereby establishing a distinct legal framework for the medical services contract. German law regards the medical services contract as a specific type of agreement, as its performance depends on the provision of the service itself rather than the achievement of a particular result.[8] According to the prevailing view, a doctor is not a guarantor of results.[9] In this relationship, both legislation and legal doctrine place particular emphasis on the physician’s obligations of patient information,[10] care,[11] confidentiality, and the maintenance of medical documentation.[12]
The relationship between the patient and the medical service provider is regulated through judicial precedents in common law countries. For example, in the United Kingdom, several landmark cases have played a decisive role in this regard, including: Bolam v. Friern Hospital Management Committee (1957), Bolitho v. City and Hackney Health Authority (1997), Cassidy v. Ministry of Health (1957), and others. These precedents established the substantive content of the physician’s obligations and the standards for assessing their fulfillment. At the international level, the specification of physicians’ duties began with the Nuremberg Code, which first articulated the concept of informed consent. This was followed by the adoption of the International Code of Medical Ethics in 1949, which established standards of professional ethics.[13] Patient rights were further reinforced by the 1981 Lisbon Declaration on the Rights of the Patient[14] and the 1997 Oviedo Convention,[15] both of which are discussed in the present article.
In view of the above, the present study represents an attempt to conduct a comparative legal analysis of issues that have thus far been addressed only fragmentarily in Georgian legal literature, taking into account relevant foreign experience. Such an approach contributes to the institutional strengthening of medical law in Georgia at both the academic and practical levels. The comparison of Georgian law, as that of a post-Soviet transitional country, with European legal approaches is of interest for further research not only within the European context but also in the broader study of post-Soviet legal systems.
Methodology
The central methodological basis of this research is the comparative legal method. The study primarily compares the Georgian and German models. The choice of the German model is justified by the fact that, among the continental European legal systems (e.g., France, Italy, and others), it is the one most closely aligned with Georgian law. It is noteworthy that the Georgian Civil Code was developed based on the reception of the German Civil Code (BGB). Consequently, the German model is the most compatible with the Georgian legal system, which makes this comparison both scientifically sound and contextually relevant.
The study also uses the normative-dogmatic method, which allows for the interpretation of existing legal norms on the basis of a systematic framework of legal dogmatics.
The inductive and deductive methods enable the transition from general principles to specific cases and, conversely, the derivation of general conclusions from the analysis of individual instances.
The systematic and logical analysis methods are applied to determine the interrelation of contractual elements, specifically, to examine the obligations of patient information, care, confidentiality, and medical documentation within a unified framework.
1. Patient
According to German law, a patient is a person to whom a healthcare provider has promised to provide medical services.[16] He or she can only be a human,[17] not an animal, as the regulation of animal treatment does not fall within the scope of medical law.[18]
Georgian legislative acts provide different definitions of the term “patient”,[19] which may be considered a legislative gap. In order to ensure a uniform standard, it is advisable to establish the definition provided for in Article 4 of the Law of Georgia on “Patient Rights”. According to this norm, a patient is any person who, regardless of his or her health condition, uses needs or intends to use the services of the healthcare system.
The provider of medical services has legal, moral, and ethical obligations towards the patient,[20] which mainly serve, on the one hand, to protect the patient’s right to life and health, and on the other hand, to ensure his or her autonomy.[21]
Patient autonomy is the right of the patient to determine independently all matters related to the provision of medical care.[22] In practice, the main barrier to the full realization of this right is the patient’s weak pre-contractual position. Considering that receiving medical services is often essential to protect the patient’s life and health, the patient is practically compelled to agree to the contractual terms offered by the medical service provider, which makes the patient the weaker party to the contract.
In order to improve patients’ rights, amendments were made to the German Civil Code in 2013.[23] This reform mainly recognized the principles previously established in German case law,[24] most of which concerned the obligation to inform patients[25] and created a legislative basis for the protection of patients’ rights.
Post-Soviet countries are trying to balance the dominant position of medical service providers with different mechanisms. For example, the Code of Administrative Offenses of the Russian Federation provides for administrative liability for including conditions in contracts that violate the legally established rights of consumers, including patients.[26]
In Georgia, the function of controlling the content of the terms of a medical service contract is primarily carried out by the courts.[27] To define the rights and obligations of the parties and eliminate legal uncertainty, it would be advisable to regulate the medical service contract as a special type of contract under the Civil Code, as is the case in other European countries (e.g., Germany).[28] This would contribute to the codification of private legal relations within a single act and enhance the standard of protecting the equality of the parties’ rights.
1.2 Minor patient
Public interest is high when it comes to the treatment of minors. The question of whether a minor has the right to receive medical services independently remains a subject of legal debate.[29] In this regard, ambiguity also exists in Georgian law.
Article 41 paragraph 3 of the Law of Georgia on “Patients’ Rights” grants a minor over the age of 16 (who, in the opinion of the medical service provider, is capable of adequately assessing his or her own state of health) the right to give informed consent or refusal to medical treatment, whereas under Article 14 of the Civil Code of Georgia, a person under the age of 18 is deemed to have limited legal capacity. Accordingly, any transaction concluded by him or her is subject to approval[30] by the legal representatives.[31]
Thus, a minor needs the consent of a legal representative to receive medical services.[32] The exception is such personal and sensitive issues defined by law, in which parents’ intervention may further worsen the minor’s condition. For comparison, the institution of “Gillick Competence” is established in the common law doctrine, according to which a minor is entitled to independently make a decision on receiving medical services if he or she has the ability to properly understand the issue.[33]
According to the prevailing view, a parent or other legal representative must act in the best interests of the minor.[34] If, in the opinion of the medical service provider, the decision of the parent or other representative does not serve the best interests of the patient, he or she may apply to the court, or in cases of emergency, act based on medical necessity.[35] The same rule applies in the absence of a parent or other legal representative.[36]
In the case of Glass v. the United Kingdom (2004), the European Court of Human Rights found a violation of the right to respect for private and family life. The Court held that the doctors, considering the minor to be in a terminal stage, administered a strong dose of morphine to the patient against the mother’s wishes. Although this may have been medically justifiable, the Court’s finding of a violation was grounded in the fact that the doctors acted unilaterally, without seeking judicial authorization, despite the parent’s refusal.[37]
Regarding the treatment of a minor, it also remains to be clarified whether the consent of both parents is required. In this context, there is a tension between, on the one hand, the parents’ right to be equally involved in matters concerning the treatment of their minor children and, on the other hand, the need to reduce medical bureaucracy. This dilemma is resolved by German doctrine, according to which the consent of both parents is required only in cases of interventions of particular complexity and importance, determined in advance; otherwise, the consent of one parent/legal representative is presumed.[38] This is a practical and effective way to solve the problem. Accordingly, the view regarding the advisability of reflecting the above approach in Georgian legislation should be supported.[39]
1.3 Patient lacking the capacity to make informed decisions
People may find themselves in situations where they are deprived of the ability to express their will,[40] in which they are unable to independently make decisions related to treatment.[41] From a private law perspective, a patient lacking the capacity to make informed decisions may be compared to a young minor (a person under the age of seven). The difference is that in this case, the person is incapacitated due to age,[42] while a patient lacking the ability to make informed decisions may also be an adult who, due to an accident or mental condition, is deprived of the ability to express a true will.[43]
In the United Kingdom, the treatment of patients in this category is regulated by a special legal act - the Mental Capacity Act 2005. It sets out the relevant criteria for assessing a person’s decision-making capacity and establishes that, in the absence of such capacity, any intervention must be carried out in the patient’s best interests, taking into account his or her past wishes, beliefs, and the views of relatives.[44]
In Georgia, the norms related to the treatment of patients lacking the capacity to make informed decisions are not consolidated in a single legal act. Decisions concerning the treatment of patients in this category are made taking into account the will they expressed in the past (when they had the capacity to make informed decisions), and in the absence of such will, based on the informed consent of their relative or legal representative.[45] In case of a conflict between the decisions of a relative and a legal representative, the will of the legal representative has priority. The involvement of relatives in decisions concerning the provision of medical services to the patient depends on their priority.[46] The decision of a patient’s legal representative or relative is binding on the medical service provider to the extent applicable in the case of a minor, as discussed above.
2. Medical Service Provider
The provider of medical services is a natural or legal entity[47] that performs any manipulation or procedure on a patient for diagnosis, treatment, prevention, or medical rehabilitation.[48] The interest existing in legal doctrine toward the medical service provider as a party to the contract is conditioned by the high social significance of medical services. In view of the above, certain obligations are imposed on the medical service provider, which ensure the provision of quality treatment and the protection of contractual equality between the parties.
2.1 Obligation to inform the patient
Informing the patient is part of the concept of informed consent,[49] which was first declared in the Nuremberg Code of 1947.[50] Later, this principle was reflected in the Lisbon Declaration on the Rights of the Patient, adopted by the World Medical Association in 1981.[51] Informing the patient, as a mandatory prerequisite for any medical intervention, is also provided for in the Oviedo Convention of 1997.[52]
The duty to inform means that, before medical services are provided, the patient must receive clear and complete information about the planned preventive, diagnostic, treatment, and rehabilitation services, as well as about alternative options, possible risks, expected effectiveness, the consequences of refusing treatment, the available resources, the ways these services can be received, their costs and reimbursement methods, the patient’s rights and duties, and the identity and professional background of the medical provider. After treatment begins, the patient must also be informed about the results of medical tests, the diagnosis, the progress of treatment, and the likely prognosis.[53]
It is essential that patients are informed in terms they can easily understand,[54] without long or confusing sentences. The information should be clear, concise, and easy to follow.[55] For example, according to the recommendations of the Coalition for Reducing Bureaucracy in Clinical Trials, the information provided to obtain informed consent should not exceed 1,000 words.[56]
The duty to inform is also established in German law.[57] Its content is defined in Section 630e of the German Civil Code, according to which the healthcare provider is obliged to inform the patient of all essential circumstances necessary for obtaining consent.[58] This primarily concerns purely medical issues. However, the scope of information to be provided to the patient is practically the same in both Georgian and German law.
The duty to inform does not exist if the patient has refused to receive the information, if there is a justified doubt that giving such information would seriously harm the patient’s health (unless the patient insists on being informed),[59] or if urgent medical intervention is needed.[60]
2.2 Duty of care
The term “duty of care” is not expressly provided for in Georgian legislation. however, its content derives from the patient’s right to treatment and care,[61] as well as from the duty of diligence established under Article 316(2) of the Civil Code of Georgia.[62] In medical law, the duty of care represents the obligation of the healthcare provider to exercise, toward the patient, a degree of caution consistent with a high professional standard, such as would be demonstrated by another competent doctor practicing in the same field.[63] It includes the core duties of the healthcare provider, which are: looking after the patient, making a diagnosis, refe
Criminalization of Electronic Begging in Algerian Legislation
Full text linkThis study addresses a very important topic represented in electronic begging as a dangerous and emerging global phenomenon based on deception and fraud, which has developed instantaneously using internet technologies and various modern methods, as a result of the misuse of technology, where the electronic beggar takes the digital space as a tool to achieve illegal goals, and to appeal to users through social media platforms, and due to the seriousness witnessed by this crime, it has become necessary to search for mechanisms to deter the electronic beggar from different age groups, including children, women, and the elderly, who is begging to reduce this criminal phenomenon of a social nature, the Algerian legislator has criminalized any criminal behavior that would exploit others to obtain material benefits similar to comparative legislation, and to impose deprivation of liberty penalties under the provisions of the Algerian Penal Code with its amendments.
Keywords: Electronic begging, virtual platforms, technology, elements of crime, punishment.
Introduction
Due to the digital transformation and the subsequent huge changes in the social lifestyle, the individual has been looking for ways to earn money regardless of its legitimacy, as cybercriminal phenomena known as ‘electronic begging’ have spread, using modern fraudulent methods in a virtual space that witnesses a remarkable presence of electronic beggars.
In fact, this new method of begging became a global phenomenon in 2009 as an independent sector on the internet, where it is easy for anyone to own a certain domain for advertising and electronic begging[1] and to be treated as a virtual job that is completely contrary to social values and threatens the stability of security and public order within societies, especially the youth of their nationality by impersonating users of various social media platforms with anonymous identities, according to recent statistics.
What is the purpose behind attracting this group, which uses false justifications, except to earn money through illegal means and to finance organized groups as the most dangerous forms of crime, as a large percentage of people suffer from the exploitation of these organized criminal groups, especially children, as the beggar child is vulnerable to delinquency and exploitation under the weight of difficult economic conditions,[2] and the Algerian legislator has given special legal protection to this vulnerable group under the provisions of Law No. 15-12 of July 15, 2015 on Child Protection.[3]
This has become a necessity for the intervention of the Algerian legislator, as in other comparative legislations, and its regulation of the provisions criminalizing electronic begging in the Algerian Penal Code, without sufficing with articles 195 and 196 of the Penal Code, He neglected to mention the deterrent aspect of the crime of electronic begging, which has been developing with the development of social media platforms in recent times.
Purpose and Objectives
The purpose of this study, which includes a recent research topic in identifying the current phenomenon of cyber begging, is to address whether the provisions of the Algerian Penal Code are sufficient to criminalize the dangerous social phenomenon ‘cyber begging’, which has been and continues to be on the rise as a result of the development of social media technologies and its comparison with the legislative frameworks of other Arab countries (Saudi Arabia, the United Arab Emirates, and Jordan). The study aims to analyze the current legal framework, assess its effectiveness in addressing cyber begging, and identify potential areas for legislative reform in Algeria, in order to develop a legal framework for the crime of cyber begging as a distinct cybercrime in the Algerian criminal code.
Research Problem
Through this study, we seek to identify the legal texts regulating the crime of electronic begging under Algerian law by evaluating the basic aspects contained in the Algerian Penal Code, which prompts us to pose the problem of the study as follows: Are the legal texts contained in the Algerian Penal Code sufficient to criminalize the phenomenon of electronic begging? Shouldn’t the Algerian legislature develop a strategy to curb this particular cybercriminal phenomenon?
To address this problem, we have decided to divide the subject of the study, which is very important in our real life, into two main axes, as follows:
The Conceptual Framework of Electronic Begging;
Elements of the Crime of Electronic Begging and the Punishment Prescribed for it.
Methodology
The study applies a qualitative legal research methodology based on the analysis of the content of the provisions of the Algerian Penal Code as amended in 2009 and 2014, especially the legislative texts relevant to the subject of the research, and here we will limit this study between 2014 and 2025 in line with the amendments that occurred to the Algerian Penal Code under the aforementioned Decree No. 66-156, and describe the phenomenon of electronic begging in Algerian society, without neglecting to study the repercussions of this criminal phenomenon on children who are at risk, the Algerian legislator has taken an interest in ensuring legal protection by enacting Law No. 15-12 on child protection in particular, and this approach is complemented by comparing the components of Algerian legal texts only with some of the legislations of Arab countries (Saudi Arabia, the United Arab Emirates, and Jordan) that have the precedence in criminalizing electronic begging under special legal provisions, especially the Saudi Anti-Begging Law, Jordanian Law, and the UAE Anti-Begging Law, which dealt with the phenomenon of electronic begging and came with deterrent sanctions, unlike the Algerian legislator, who we noted the extent of his inadequacy in regulating the provisions of electronic begging.
Thus, based on these common research approaches, we can reach comparative theoretical, descriptive and analytical insights, by highlighting the absence of explicit legislative provisions in Algeria compared to other Arab countries, which embodies one of the shortcomings while identifying the legal gaps contained in the Algerian Penal Code, and considering the extent to which its amendments respond to modern technology that has contributed to the development of traditional crime. No. 66-156 containing the Algerian Penal Code, related cybercrime laws, and secondary literature covering the period under analysis of developments 2014-2025.
1. The Conceptual Framework of Electronic Begging
Electronic begging is one of the modern social problems that is similar to the traditional known begging, but it is committed in a modern technical way, which makes it of an electronic nature, so let’s divide this topic into two demands, in the first demand, we deal with the concept of electronic begging, and the second demand we have dedicated to talking about the causes of the phenomenon of electronic begging and its forms:
1.1 The concept of electronic begging
Through this requirement, we will talk about the concept of electronic begging, where in the first section we will discuss the definition of electronic begging, while the second section will be devoted to talking about the characteristics of electronic begging:
1.1.1 Definition of electronic begging
Begging is a dangerous global social phenomenon,[4] which spreads across all societies, where the electronic beggar uses the digital space to achieve illegal goals, and to identify this emerging phenomenon, we must define it in terms of terms and law based on various comparative legislations:
Terminological and jurisprudential recognition
Begging is defined in terms of begging and asking for charity from others without financial compensation or for a symbolic financial compensation,[5] as defined by a part of jurisprudence as “the illegal criminal behavior carried out by the offender, which is represented in begging and asking for charity from others without compensation or for a trivial fee that was not requested by that third party, which entails a penalty or precautionary measures by law”.[6]
As for electronic begging, it is a form of modern begging, which is an electronic version similar to traditional begging, asking for money behind screens using electronic methods through social media platforms such as electronic text messages and fake personal photos to bring the affection of its users in a short period of time to collect money, where the electronic beggar pretends to be financially helpless,[7] asks for help and explains his economic conditions, taking advantage of his presence in the virtual space.[8] with an anonymous identity without revealing his personal data, as his details cannot be identified.[9]
It is noted that the electronic beggar does not exert any personal effort to endure hardship to obtain legitimate money, which constitutes a burden on society and negatively affects individual income, as a result of not looking for a job opportunity, and crime rates increase.
Legal definition
The definition of begging has received considerable attention in the light of comparative legislation, as Article 1/5 of the Saudi Anti-Begging Law of September 16, 2021 defines it as “a person who begs for the money of another without consideration or for an unintended consideration in cash or in kind, directly or indirectly, in public places, shops, or in modern means of technology and communication, or by any means whatsoever”.[10]
Referring to the UAE Anti-Begging Law No. (31) of 2021 promulgating the Crimes and Penal Code[11] under the provisions of Article 475 in its first paragraph, begging is defined as “begging for the purpose of obtaining a material or in-kind benefit in any form or means”.
It is clear to us through these definitions that the comparative legislation has come to criminalize this phenomenon of begging in general and electronic begging in particular, as evidenced by its reference to the occurrence of this crime in a traditional or technical, or modern way through the use of modern electronic means.[12]
As for the Algerian legislator, the provisions of the crime of traditional begging were regulated in the Penal Code No. 14-01 of February 4, 2014,[13] but it omitted the definition of begging; this necessitates the regulation of the provisions of traditional begging and begging in its modern form with a special legal system within the provisions of the Algerian Penal Code, the latter of which ignores the regulation of the crime of electronic begging, unlike the comparative legislation, and in accordance with article 195 of Law No. 82-04 of February 13, 1982 it considered a person who used to practice begging anywhere despite the availability of the means of subsistence, or who can obtain it by work or any other lawful means.
In view of the fact that the crime of begging is committed by any person, whether fully or incompetent, and the latter refers to a child who has been exploited by others to earn money illegally, the Algerian legislature stipulates in Law No. 15-12 on the protection of the child that begging or exposing the child to begging is one of the cases that endanger the child in accordance with the provisions of article 2/2 of the same law.[14]
1.1.2. Characteristics of electronic begging
Electronic begging is distinguished from other traditional criminal phenomena by the following:
The phenomenon of electronic begging is based on ‘electronic fraud’ and exploitation of others to achieve financial interests, where the electronic beggar selects influential phrases, designs videos and photos, and publishes them widely, to attract the affection of users to obtain financial donations;[15]
Electronic begging committed on Facebook and Twitter platforms with private tweets is considered one of the crimes that cross borders are difficult to prove and do not stop at a specific country,[16] as the information society does not recognize geographical borders, as borders have become intangible due to the use of the information network,[17] similar to cybercrimes that are committed without the control of the security services;
Electronic begging is considered one of the safe digital criminal phenomena for the anonymous beggar, whose real identity cannot be revealed and tracked, due to the concealment of his identity by using pseudonyms and fake photos,[18] unlike some countries, including Mexico, which require the electronic beggar to reveal their real identity so that he is not a victim of deception and electronic fraud;[19]
The cyber beggar uses the internet to penetrate accounts and personal data,[20] and conduct electronic espionage on them by impersonating false identities through several electronic applications in pages and groups to interfere in the privacy of users, getting closer to them, and identifying their financial and social status to obtain personal information such as address, credit cards, or bank balance, etc;[21]
The reliance of fraudulent beggars on the public publication of personal facts of privacy,[22] including the fabrication of disabilities, the disclosure of a serious illness and the request for treatment from it by uploading prescriptions, medical reports, fake official papers for fake accidents, electricity or gas bills, or collecting donations for the construction of a mosque, etc.[23] or to disclose the case of his inability to pay debts.[24]
The transformation of electronic begging from an individual act to a collective act carried out by organized criminal groups that violate human rights, in exchange for funds called the ‘begging mafia’,[25] which represent electronic gangs that work to attract professionals of electronic begging,[26] whether or people suffering from diseases or illegal immigrants and events that insult their dignity by beating,[27] mistreating and maiming them to collect funds through the internet.[28] This puts them at risk of deviation, exploitation, or other risks, and they use communication through web services to bring in large capital and carry out charitable projects.[29]
From this point of view, we adapt the crime of electronic begging to organized crime, which negatively affects society, making the foreign investor not open investment projects in countries where electronic begging is prevalent.
1.2. The causes and forms of electronic begging
Through this requirement, we will address the motives and forms of electronic begging, which we divide into two sections, so that we can identify, through the first section, the causes of electronic begging, and the second section we have dedicated to talking about the forms of electronic begging:
1.2.1 Causes of electronic begging
The causes of electronic begging are numerous among social, economic, and political reasons, which push individuals of different age groups to commit this new crime, so we summarize these reasons as follows:
The misuse of electronic technical means and virtual platforms by the electronic beggar who does not communicate with the outside world, which results in the adaptation of electronic begging to cybercrime, as a result of the increase in the frequency of electronic criminal behaviors by its perpetrators;[30]
The desire of the electronic beggar to search for any means to bring a livelihood, even at the expense of his humanitarian and religious principles, makes him vulnerable to exploitation, and to simulate the developments of communication through cyberspace to earn money;
The spread of social ills and the deviation of the individual’s behavior that make the beggar practice begging in the virtual space out of need,[31] especially the phenomenon of youth using drugs, is considered a direct cause of the practice of begging, as some members of society practice electronic begging to get money to buy it;[32]
Lack of family support systems (family and friends)[33] as a result of family disintegration, which leads to the deviation of the individual’s behavior and the exploitation of his social or health conditions to achieve financial interests,[34] or to receive treatment, open a small business, or obtain housing;
Some members of the community have succumbed to these beggars out of their favor and made it a habit in compliance with the words of Allah Almighty, “But the beggar does not flow” (Surah Al-Duha, verse 10), which results in a loss of trust in the real needy and a lack of social solidarity,[35] or rather a lack thereof, by distributing financial donations to the needy class, In fact, electronic begging distorts the image of charitable institutions and reduces their credibility, as individuals are reluctant to donate for fear of electronic fraud.[36]
1.2.2 Forms of electronic begging
As a result of the technological wealth in various fields, people have exploited this development in negative ways due to the deterioration of economic conditions, where the electronic beggar takes multiple innovative methods to beg through the internet, through social media, by asking for money by email, WhatsApp, and Facebook,[37] where the forms of electronic begging vary as follows:
- Begging through internet rooms: The e-beggar uses the chat box to participate in the collection of money and financial aid by poker players through the internet, who pay huge profits to the beggars;
- Begging through chat rooms: Young people use chat rooms and transfer money via fake accounts in exchange for fake relationships;[38]
- Begging through live broadcasting: The electronic beggar resorts to live broadcasting through voice or video communication through electronic platforms,[39] in exchange for concessions and behaviors made by the broadcaster or the supporter of the live broadcast, we give the example of the followers through the TikTok application who are famous for electronic begging due to the advantages and financial gains with quick profit that this application provides;[40]
- Begging via email: This type of electronic begging is the most common form, as the electronic beggar targets certain groups and sends annoying emails that deceive the sender that he needs money to face special social conditions;
- Commenting through electronic publications: The electronic beggar takes the opportunity of a lot of comments about a certain electronic post through virtual platforms,[41] where the beggar takes advantage of some activists on social media sites in order to call for fundraising and achieve personal profit.[42]
2. Elements of the Crime of Electronic Begging and the Punishment Prescribed for It
States are developing a strategy aimed at enacting legislation at the national level to combat the crime of electronic begging, as it is a major challenge for them, despite the Algerian legislator’s neglect to talk about the phenomenon of electronic begging over the internet using modern methods as one of the cybercrimes punishable by law, unlike traditional begging, Let us divide this topic into two demands, and we try to adapt through the first requirement the crime of electronic begging and its elements, while in the second demand, we talk about the punishment prescribed for the crime of electronic begging.
2.1 Adapting the crime of electronic begging and its elements
Through this requirement, we focus on adapting the description of the crime of electronic begging between a traditional crime and a cybercrime, and identifying the pillars on which this crime is based, through two branches:
2.1.1 Adaptation of the crime of electronic begging
The Criminal Code neglects to regulate the criminalization of electronic begging provisions, which makes it impossible to issue sentences against the perpetrators, where the electronic beggar who violates the privacy of individuals escapes punishment,[43] and is classified as electronic or virtual fraud, whose purpose is to seize the money of others by deception, where the cybercriminal commits acts by using computerization aimed at obtaining a financial privilege.[44]
It should be noted that the adaptation of the description of the crime of electronic begging as electronic fraud falls within the framework of cybercrime as an integral part of it, which is committed as a result of the illegal use of the digital communication network (internet), with the intervention of a cybercriminal to carry out the criminal act, which results in causing damage to the victims of begging as a result of the robbery of their money in fraudulent ways[45] Consequently, electronic begging is described as a misdemeanor that includes the set of legally sanctioned acts and activities that link the criminal act to technology.[46]
2.1.2 Elements of the crime of electronic begging
The crime of electronic begging is subject to the existence of three pillars, namely the “legal element”, which is the basis of criminalization and punishment, the “material element”, which is represented by the act, the result and the causal relationship, and the “moral element”, which is represented by the will that is associated with the act, which consists of the elements of science and will, as these elements will be dealt with as follows:
The legal element of the crime of begging
The rule of “no crime and no punishment except by text” is one of the basic principles stipulated in most national constitutions and legislations, where the legal or legal element of the crime requires the existence of a legal text that indicates the act constituting the crime as an illegal act that is criminalized by law without giving it any reason for permissibility and specifies the punishment for the perpetrator of such criminal act or behavior, and this is called the principle of legality.[47]
The material element of the crime of begging
The material element of the traditional crime is positive
Legal Protection Mechanisms for Electronic Consumers from Misleading Advertising
Full text linkThis study addresses the legal protection of electronic consumers from misleading advertisements. Fair electronic advertising is a fundamental requirement of e-commerce and a means for advertisers to promote their products. However, violations of advertising integrity rules occur in attempts to mislead consumers. Considering that the electronic consumer is a weak party in electronic commercial transactions, the Algerian legislator has established legal protection through several laws enshrining the principles of transparency and establishing penalties for violations by electronic suppliers.
Legal systems vary between countries in the level of protection provided, with developed countries advancing comprehensive legislation and effective mechanisms compared to developing countries still striving to keep pace with technological developments. Addressing these challenges requires developing national legislation, enhancing international cooperation, investing in advanced monitoring technology, and intensifying consumer awareness programs on digital rights. This contributes to building a safe and reliable e-commerce environment that effectively protects consumer rights from misleading and fraudulent business practices.
Keywords: Consumer protection law, misleading electronic advertising, e-commerce regulation, unfair commercial practices, digital advertising.
Introduction
Electronic commerce has transformed commercial transactions globally, enabling consumers to purchase goods and services across borders with unprecedented ease. However, this development has exposed consumers to new risks, particularly misleading electronic advertising. The rise of influencer marketing has blurred the line between genuine opinion and paid endorsement, creating new vectors for consumer deception that traditional legal frameworks struggle to address.[1]
The Algerian legislator has drawn on comparative models, including the European Union’s Digital Services Act[2] and Directive 2005/29/EC,[3] the American FTC[4] framework, and British consumer protection regulations.[5] At the soft-law level, the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (2023)[6] call on enterprises to ensure that marketing and advertising are fair and not misleading, and that consumers receive accurate information about products and services. Recent comparative research demonstrates that challenges arising from data-intensive business models and cross-border e-commerce weaken the overall effectiveness of legal protection for electronic consumers, calling for more harmonised rules and enhanced cross-border cooperation.[7]
The European regulatory architecture for electronic commerce rests on two complementary instruments. Directive 2000/31/EC of 8 June 2000 on electronic commerce[8] established the foundational legal framework for information society services in the internal market, including specific requirements for commercial communications under Articles 6 and 7. Article 6 mandates that commercial communications be clearly identifiable as such, that the natural or legal person on whose behalf they are made be clearly identifiable, and that promotional offers and conditions be easily accessible and presented clearly and unambiguously. This transparency-based approach sought to prevent consumer deception by ensuring that electronic advertising could be distinguished from other content. Twenty-two years later, Regulation (EU) 2022/2065 (Digital Services Act) amended this directive to address new challenges posed by online platforms, including the dissemination of misleading information and manipulative interface designs, while preserving the foundational liability framework established by Articles 12-14 of Directive 2000/31/EC.[9]
The Algerian legislator issued E-Commerce Law 18-05 dated May 10, 2018,[10] and Law No. 09-03 of February 25, 2009, relating to consumer protection and suppression of fraud.[11] Recent Algerian scholarship has examined Law 18-05 as a comprehensive framework for protecting online consumers, with particular focus on pre-contractual information duties and safeguards against misleading electronic advertising, though important gaps remain, including the lack of an explicit definition of misleading electronic advertising.[12]
This study aims to clarify the most important aspects of legal protection for the electronic consumer from misleading advertising, evaluate the adequacy of national legal texts in comparison with international standards, and urge electronic advertisers to adhere to legal rules to avoid unfair practices.
This topic raises an important problem: To what extent do current legal mechanisms for protecting the electronic consumer fit with the challenges posed by misleading electronic advertising in the contemporary digital environment?
Several hypotheses branch out from this main problem:
First, how can traditional legal frameworks keep pace with the rapid development of advanced digital advertising technologies?
Second, current legal mechanisms for protecting electronic consumers suffer from legislative and enforcement gaps that limit their effectiveness in confronting advanced methods of misleading advertising, which calls for the development of innovative legal approaches that combine technical flexibility with effective protection;
Third, protecting consumers from misleading advertising requires incorporating technical standards into legal texts;
Fourth, effective regulation requires unified international cooperation mechanisms between regulatory authorities.
Methodology
This study employs analytical, descriptive, and comparative approaches to examine the legal texts governing electronic consumer protection from misleading advertising. The analytical approach deconstructs the research problem and extracts protective provisions from relevant legal texts. The descriptive approach provides a deep understanding of fundamental concepts such as electronic consumer, electronic advertising, and misleading advertising. The comparative approach encompasses three dimensions: horizontal comparison between different legal traditions (Anglo-Saxon, civil law, mixed systems), vertical comparison between regulatory levels (international soft law, regional instruments, national legislation), and temporal comparison tracking the evolution of consumer protection legislation from Directive 2000/31/EC to the Digital Services Act. The study is divided into two chapters: the conceptual framework for misleading advertising and the legal basis for electronic consumer protection (Chapter One), and legal mechanisms to protect the electronic consumer from misleading electronic advertising (Chapter Two).
1. The Conceptual Framework for Misleading Advertising and the Legal Basis for Electronic Consumer Protection
Commercial advertising plays a major role in influencing consumer behavior. However, consumers may be exposed to deception through advertising, and therefore, adequate legal protection must be provided. Modern legislation has tended towards criminalizing false claims and misleading advertising.
1.1. Definition of misleading advertising
The dishonest practice of false statements and impressions made by advertisers to persuade consumers to make a purchase is known as deceptive advertising.[13] The Internet in e-commerce is a double-edged sword: facilitating commercial exchanges while also enabling crimes. Legislative intervention is necessary to control the consumer process in this virtual environment.
1.1.1 Definition of misleading advertising in Algerian law
The crime of misleading electronic advertising is considered a form of information crimes in which the victim is the electronic consumer,[14] whom the Algerian legislator defined in the Electronic Commerce Law 18-05, Article 06, as “any natural or legal person who acquires, for compensation or free of charge, a good or service through electronic communications from the electronic resource for the purpose of end use”.[15] Misleading electronic advertising is defined as an advertisement in which the advertiser uses false words or phrases about the essential characteristics of the product or service advertised electronically, leading to consumer deception.[16]
The Algerian legislator did not provide an explicit definition, but defined electronic advertising requirements under Law No. 18-05.[17] Law 09-03 considers advertising that deceives consumers through writings or publications as an aggravating circumstance for the misdemeanor of deception.[18] Article 28 of Law 04-02 relating to commercial practices states that all misleading advertising is illegal and prohibited, especially if it includes misleading information about product definition, quantity, availability, or features, or could lead to confusion with another seller’s products.[19]
1.1.2 Definition of misleading advertising in comparative legislation
Comparative legal systems converge on three constitutive elements of misleading advertising: (1) the presence of false, inaccurate, or incomplete information; (2) the capacity to influence the economic decision of the average consumer; and (3) the deliberate omission of material information.
At the European Union level, Directive 2005/29/EC establishes a harmonised prohibition of unfair commercial practices, including misleading actions and omissions that materially distort the economic behaviour of the average consumer.[20] Recent scholarship defines evolving deceptive techniques as “dark patterns”, interface designs deliberately crafted to manipulate user autonomy and steer consumer choices.[21] This development is reflected in the Digital Services Act, whose Article 25 prohibits designing interfaces that deceive or manipulate service recipients.[22] Annex I complements this framework with a blacklist of practices that are in all circumstances unfair, several of which directly target misleading advertising techniques such as bait advertising, bait-and-switch strategies, false endorsements, and advertorials.[23]
The interaction between the E-Commerce Directive and unfair commercial practices legislation creates a layered regulatory framework. While Directive 2000/31/EC establishes formal transparency requirements for commercial communications—mandating clear identification of advertising content and the advertiser’s identity—Directive 2005/29/EC addresses the substantive truthfulness of such communications by prohibiting misleading actions and omissions. This complementary structure means that electronic advertising may violate European consumer protection law either by failing to meet formal identification requirements (Article 6 of Directive 2000/31/EC) or by containing materially misleading content (Articles 6-7 of Directive 2005/29/EC). The Digital Services Act reinforces this framework by imposing additional due diligence obligations on online platforms, including the prohibition of deceptive interface designs under Article 25. This evolution reflects the recognition that effective protection against misleading electronic advertising requires addressing both the formal presentation and the substantive content of commercial messages, as well as the structural conditions that facilitate their dissemination.
The French Consumer Code (Article L121-1) qualifies as misleading any commercial practice containing false information or likely to mislead, even if formally correct.[24] Under the US Federal Trade Commission Act,[25] an advertisement is misleading where it involves misrepresentation or omission, is likely to mislead consumers acting reasonably, and concerns material information affecting purchasing decisions.[26] British law, through the Consumer Protection from Unfair Trading Regulations 2008, criminalises practices that deceive the average consumer through false information, undue influence, or concealment of essential facts.[27]
From this definition, the basic elements of misleading advertising can be identified as follows:
First, the presence of an advertising message directed to the public to promote a good or service;
Second, providing false or misleading information, whether this information relates to the nature of the product, its characteristics, its price, or the guarantees provided with it;
Third, the possibility of advertising influencing the consumer’s decision, meaning that advertising would push the consumer to make a purchase decision that he would not have made without that information.
Article L121-2 of the Consumer Code further stipulates that the deliberate concealment of essential information can constitute a misleading practice, even in the absence of explicit false information.[28]
According to the US Federal Trade Commission (FTC),[29] an advertisement is considered misleading if three main elements are present:
First, incorrect representation or omission of information, such as providing incorrect data or withholding essential information;
Second, the capacity to mislead, meaning that advertising would mislead the average consumer who relies on this information;
Third, the materiality of the information in the purchasing decision, meaning that the misinformation must be related to a factor influencing the consumer’s decision to purchase the product or service.
Therefore, misleading advertising in the US law is a clear violation of the consumer’s right to correct information, constitutes illegal commercial behavior, and is combated at the federal and state levels through special legislation and effective regulatory bodies.
1.2. Elements of the crime of misleading electronic advertising
Every crime requires three pillars: the legal pillar, the material pillar, and the moral pillar. The crime of misleading advertising is a formal crime that occurs as soon as the conduct criminalized by law is committed.
1.2.1. Material element
The material element presupposes the existence of a commercial advertisement disseminated through electronic means,[30] containing misleading information likely to confuse consumers regarding the nature, quantity, or characteristics of the product or service.[31] Neither Algerian nor French law requires a specific professional status for the perpetrator; liability attaches to any natural or legal person who publishes a misleading advertisement.[32]
The forms of misleading advertising are represented in the elements stipulated by the legislator in Article 28 of Law 04-02. Jurisprudence divides these into two categories: misleading related to the good or service itself (availability, components, origin, method and date of manufacture, quantity, price),[33] and misleading related to elements independent of it (terms and motives of sale, advertiser’s obligations and identity).
1.2.2. Moral element
Most French court rulings have tended to assume bad faith in misleading advertisements. The French Court of Cassation, in its decision of 5/1/1994, considered that the misdemeanor of misleading advertising occurs even without bad faith; the advertiser is obligated to verify the advertisement before publishing it.[34] Judges are not obligated to search for bad faith; negligent error suffices for liability.[35]
Failure to require intentionality or bad faith of the advertiser: Most French court rulings have tended to assume bad faith in misleading advertisements, including a notable ruling convicting a real estate agent who had made a false advertisement for an advertised property, relying on the trust confirmed by the property owner. The court did not consider bad faith a condition for liability for false advertising, stating that “a lie is necessarily voluntary, i.e., intentional”. Thus, the court ruled that a false commercial message triggers liability regardless of the advertiser’s bad faith.[36]
The French Court of Cassation definitively settled this matter in its decision of 5 January 1994, which held that the misdemeanor of misleading advertising occurs even without the advertiser having bad faith.[37] Negligence or lack of precaution cannot serve as an excuse to escape responsibility, as the advertiser is obligated to verify the advertisement and its authenticity and to be aware of everything it contains before publishing it.
In the face of this decisive ruling, judges are not obligated to search for the advertiser’s bad faith; it is sufficient that the latter committed a negligent or careless error to be considered guilty. As for the Algerian legislator, based on Article 28 of Law 04-02,[38] it is clear that he did not refer to the requirement of bad faith or its exclusion, meaning that the advertiser’s will is directed towards the material actions that represent lying and misleading.
In Brazilian legislation, Article 67 of the Consumer Defense Code establishes criminal liability for misleading advertising where the person “knows or should know” the advertisement is misleading, covering both intent (dolo) and negligence (culpa).[39] European Union laws focus on “the possibility of misleading the average consumer” regardless of the advertiser’s intention.[40]
1.2.3. Consumer misinformation assessment criteria
Consumer assessment is subject to two criteria. The subjective criterion considers the recipient’s personal characteristics—intelligence, perception, experience. However, this criterion is criticized for requiring research into hidden personal attributes.[41] The objective criterion uses the standard of the ordinary person of average intelligence representing the general public, according to which misleading advertising occurs only if likely to mislead the average consumer.
2. Ways to Legally Protect the Electronic Consumer from Misleading Advertisements
Commercial advertising pushes consumers to contract, necessitating protection from advertisers displaying misleading electronic advertisements. False and misleading advertisements can be categorized into violations of the consumer’s right to information and choice, and violations of the consumer’s right to safety.[42]
This protective framework is grounded in the United Nations Guidelines for Consumer Protection (UNGCP, 2015). Guideline 11(b) requires businesses to avoid “illegal, unethical, discriminatory or deceptive practices”, while Guideline 63 urges Member States to ensure consumer protection in e-commerce is not less than in other forms of commerce.[43] The 2016 OECD Recommendation on Consumer Protection in E-commerce sets standards for fair business practices, clear online disclosures, and effective dispute resolution, requiring that consumer protection in e-commerce be not less effective than in offline commerce.[44]
2.1. Preventive protection for the electronic consumer from misleading advertisements
Preventive protection means legal and regulatory measures aimed at preventing the publication of advertisements containing incorrect or misleading data before reaching the consuming public. These measures include prior censorship, binding standards for advertising content, and special obligations on advertisers.
In Algeria, Law No. 18-05 and Law No. 09-03 prohibit the publication of advertisements containing false data or likely to mislead consumers.[45] The legislator obliges advertisers to accurately state essential data and grants competent authority to stop or withdraw violating advertisements.[46] Recent Algerian scholarship emphasises that these mechanisms seek to rebalance the contractual relationship in electronic commerce by deterring misleading advertising and providing enforceable rights and remedies, though legal measures must be complemented by sustained awareness-raising efforts.[47]
Developed jurisdictions have established robust preventive mechanisms. In France, the DGCCRF may prevent misleading advertisements before publication.[48] The US Federal Trade Commission possesses the authority to issue cease and desist orders and impose fines.[49] Egypt’s Consumer Protection Law No. 181 of 2018 gives the Consumer Protection Agency authority to stop advertisements containing misleading information,[50] with the possibility of referring violators to the Public Prosecution.[51] Japan’s Fair Trade Commission reviews advertisements and issues corrective orders under the Act against Unjustifiable Premiums and Misleading Representations.[52]
At the European Union level, the Digital Services Act establishes a harmonised preventive framework based on due diligence obligations for intermediary service providers, requiring online platforms to actively assess and mitigate systemic risks, including the dissemination of misleading information.[53] The OECD Guidelines (2023) reinforce preventive standards by calling on enterprises to refrain from deceptive commercial practices and conduct risk-based due diligence.[54] The Council of Europe’s 1989 European Convention on Transfrontier Television prohibits subliminal and surreptitious advertising and imposes safeguards for advertising addressed to children.[55]
The preventive framework established by Directive 2000/31/EC operates through transparency mechanisms rather than prior authorisation. Article 6 requires that commercial communications transmitted by electronic means satisfy four cumulative conditions: they must be clearly identifiable as commercial communications; the natural or legal person on whose behalf the communication is made must be clearly identifiable; promotional offers must be clearly identifiable as such, with conditions easily accessible and presented clearly; and promotional competitions or games must likewise be clearly identifiable, with participation conditions easily accessible. Article 7 complements these requirements by regulating unsolicited commercial communications, requiring Member States to ensure that service providers undertaking such communications consult and respect opt-out regis
Towards the Obligation of Warning Imposed on Banks: A Reading of French Judicial Decisions
Full text linkThe financial crisis and its consequences on households have led the judge to strengthen borrower protections in terms of granting credit. Whether these are granted to professionals or to non-professionals, this is how the concept of uninformed borrower and the duty to warn gradually emerged.
The result of hesitant jurisprudential developments, the duty to warn is not applied in the same way depending on the status of the borrower. Therefore, it must be about the legal frameworks.
If it appears that the bank’s warning commitment comes into conflict with the bank’s principle of non-interference in the client’s affairs, then in reality its intervention in this obligation is primarily through the elaboration a plan and technical support in the form of warnings, which consists of exercising caution in accordance with what is contained in banking practices.
It imposed new obligations on the banker in granting credit, since he was successively subject to the obligation to inform, then to the obligation to advise to guide the borrower, and finally to the obligation to warn, thus giving the bank an active role. Based on this information, the following question arises: What are the legal controls to comply with the warning, the violation of which entails the bank’s liability?
Keywords: Bank, duty to warn, uninformed borrower, customer, case law, risks.
Introduction
The banking sector is one of the most important pillars of the economy. The credit function is also considered the most important of all, given its role in generating profits for banks in particular and for the economy in general. While the credit function of banks contributes to economic development by financing various projects, it is also a fundamental factor in economic collapse, as it involves assuming risks that cause banking crises that threaten the stability of the country’s banking and financial sector.
Although banks are committed to upholding high ethical standards in the distribution of credit, they can behave in ways that violate legal or customary requirements, making this process an opportunity to violate their obligations.
The financial crisis and its aftermath have led to the strengthening of borrower protection measures regarding credit, whether granted to professionals or non-professionals. This is how the concept of the unsophisticated borrower and the banks’ obligation to warn gradually emerged. The bank’s duty to warn arose from a firm desire to make credit less risky for the borrower, since the latter does not enter into a contract with the bank on an equal footing, and thus to restore a fair balance between the parties.
Within the framework of the bank’s duty to warn, the constructive role of the judiciary in the name of good faith and fairness, and its impact, were manifested by the legal recognition of the bank’s obligation to warn the borrower, the guarantor, and the investor.
It imposed new obligations on the banker in granting credit, since they were successively subject to the obligation to inform, then to the obligation to advise to guide the borrower, and finally to the obligation to warn, thus giving the bank an active role.
Based on this information, the following question arises: What are the legal controls for complying with the duty to warn, the violation of which entails the bank’s liability?
To address this issue, we will adopt a descriptive and analytical approach, analyzing relevant legal texts. We will also use a comparative approach, drawing on French case law addressing the topic.
To address this issue, we will divide our research into two areas. In the first area, we will address the subjectivity of the bank’s customer warning obligation, and in the second area, we will address the scope of the warning obligation.
1. The Bank’s Obligation to Warn its Customers
The bank’s commitment is to warn of the natural consequences of the effectiveness of legal thinking by keeping pace with modern scientific and technological developments, thus working to achieve effective protection of customers by warning them of the dangers that may arise from banking operations.
1.1. The concept of the bank’s obligation to warn
The bank’s duty to warn is defined as a preventive measure aimed at assisting the customer by warning them and drawing their attention to enable them to protect themselves against perceived risks.[1]
It is also referred to as a “subsidiary obligation for one party to warn the other party or draw their attention to certain circumstances or information, to inform them of the material or legal risks surrounding or arising from this contract”.[2]
Thus, the bank must warn its customers by any means if certain financial activities indicate that they are unable to repay the borrowed money. Similarly, if the customer’s activities are suspicious, dangerous, or present negative aspects, the bank must warn them not to carry out these activities.[3]
Banks take the form of a warning if the situation leads to this, and the bank or credit broker must warn of the risks of the transaction, explaining its expected risks. The lender, therefore, warns the faithful and prudent borrower about their financial capacity and the debt risks associated with granting loans.[4]
To assist the borrower, the French Court of Cassation included in its ruling of July 12, 2005, the bank’s obligation to provide a warning, based on an analysis corresponding to the borrower’s repayment capacity.[5]
The French courts have also demonstrated their contribution to the inclusion of this obligation and the clarification of its characteristics by issuing two other decisions: The first ruling handed down by the French Court of Cassation on June 29, 2007, determined the right to benefit from the obligation to notify a borrower who has not provided notice.[6]
The second ruling handed down by the French Court of Cassation on May 31, 2011, clarified that a professional is not necessarily a risk-averse borrower.[7] A pharmacist or a business manager is, therefore, not, by right, a person who is informed about financing.[8]
Thus, the bank must inform the borrower of the risks associated with the loan, taking into account that the bank’s obligation to notify falls on the borrower even if another bank has previously notified them. Adherence to a warning can be equated with negative advice, not doing something accompanied by an explanation of the dangers, or simply the problems that could be faced if the advice is not followed.[9]
1.2. The distinction between the obligation to warn, the obligation to inform, and the obligation to advise
The obligation to inform differs from the obligation to warn, as the latter aims to draw attention to or bring to the attention of the other contracting party a negative impact on the contract, or on the subject matter of the contract, which involves a danger or risk of which the other party must be warned.[10] The information commitment requires neutral, objective, and general information that includes only the conditions of the requested service, without addressing the question of the suitability or otherwise of that service.[11] This means that this transfer process takes place without the bank’s intervention. It consists of transmitting raw information in its simplest form, without any intervention from the bank.[12]
The effectiveness of warnings regarding bank loans is achieved when the expected or likely risks of entering into these transactions are identified, risks that the customer might reject if they were aware of them. Conversely, the bank’s reluctance to explain these risks and warn of their dangers constitutes a breach of its duty to warn.[13]
If the obligation to advise and guide is considered a positive act, the bank is entitled to provide its client with whatever is convenient for them, and the client is free to follow this advice or not, to remain in compliance with the bank’s instructions. However, the situation must be changed, and the obligation to advise and guide must be replaced by the obligation to warn, which the bank imposes on its client if it discovers the existence of unavoidable errors.
The essence of the obligation to advise is that the bank must align the raw information at its disposal with the client’s objective in the financing.[14]
Compliance with the warning entails legal consequences that are contrary to the obligation to advise and guide. While it is up to the client to choose whether to follow the bank’s advice and guidance, the situation is different regarding the obligation to warn: the client is not free to choose whether or not to comply. Rather, they must do what is requested, as failure to comply with this obligation could result in risks.
However, if the customer fails to respond, the bank has the right to take any precautions it deems appropriate, including stopping or reducing the credit or refusing any increase in it.[15]
In some cases, the bank’s obligation is not limited to informing its consumer client, but it must also offer them the optimal solution for their needs. In other words, its obligation goes beyond mere information and includes the need to explain the most appropriate course of action. This involves advising the client on whether or not to enter into the contract, or on adopting a particular position. In this case, the bank is positively influencing the formation of its borrowers’ opinions.
Regarding compliance with the warning, this is negative advice intended to draw attention to the possible consequences of failure to comply with the advice provided. However, the obligation to warn is considered less stringent than the obligation to advise, as it does not involve guiding the contracting party as to the intended objective. The second obligation is more stringent, requiring, in addition to warning the client about the risks of the transaction to be concluded, more specific and detailed advice than the warning.
Accordingly, the criterion for distinguishing between the previous obligations is the risk criterion, which determines the degree of intervention required by the professional, where the obligation to warn is considered a strict obligation to inform, and if the risk decreases, then we are dealing with a simple obligation to inform, and with the increase in the degree of risk, the degree of the required obligation increases.[16]
2. The Extent of the Bank’s Obligation to Warn its Customers
Based on the French Court of Cassation’s decision issued on April 22, 2017, which defined the scope of a bank’s obligation to warn the borrower, and its confirmation that this obligation is limited and determined according to two basic criteria: one related to the borrower’s status, and the second related to the borrowing risks.[17]
2.1 Professional status of the borrower
The obligation to warn is closely linked to the borrowing client, and its scope is therefore determined by their status. On this basis, French courts have distinguished between informed and uninformed clients, with the bank’s obligation to warn only the latter. An informed client is one who has repeatedly demonstrated their knowledge of the financial markets. This is considered an informed client, and the bank has no obligation to warn them.[18]
The person who provides the warning is also the one who possesses the necessary skills to assess the content, scope, and risks associated with the loans granted by the bank.[19] The French Court of Cassation once again confirmed in a ruling handed down on March 18, 2014, that the person who provides a warning is not subject to the bank’s obligation to warn.[20]
Thus, among borrowers, French law has distinguished between informed and uninformed borrowers and has reserved the obligation to warn only to uninformed individuals. French case law has gradually developed criteria for considering and classifying a client as a high-risk borrower. The warning obligation only applies to uninformed borrowers and guarantors; it is therefore up to credit institutions to verify the borrower’s status to determine whether or not they are subject to the warning obligation.
In this regard, the French Court of Cassation confirmed on November 19, 2009, that credit institutions must prove that the borrower was warned and was not required to benefit from the duty to warn.[21]
Professional standards are also taken into account, as executives or managers cannot benefit from the duty to warn, and it has been ruled that a doctor cannot benefit from the duty to warn.[22]
In this case, the bank granted a loan to a professional partnership composed of a doctor and two partners. Then, as the partners were prohibited from practicing, the bank granted another loan to the doctor. Due to the expiration of the deadline, the bank called the doctor to pay.
The doctor sued the bank for breaching his duty to warn, and the Toulouse Court of Appeal found that the doctor was a knowing borrower. The Court of Cassation upheld the Court of Appeal’s findings, finding that “the doctor, a high-level medical specialist, could not have been unaware of the risks inherent in the transactions he had undertaken. He had gained experience with the first loan taken out over the past three years and was better placed to assess the prospects for the development of his professional activity and, consequently, his repayment capacity”. The Court of Cassation, therefore, considered that the Toulouse Court of Appeal’s decision was legally justified.
We also add that when two people borrow from a bank, the prudential nature of the loan is assessed individually for each of them, and the bank cannot be exempted from its duty to warn of the presence of an informed person on the borrower’s side, whether a third party or a party[23]. Furthermore, the French Court of Cassation has clarified that it is up to the lending institution to determine whether the borrower was aware or not.[24] The status of a borrower, whether aware or not, of a registered company is assessed by the person of its manager.[25]
It should be noted that a manager may be considered unwarned, and the bank is obligated to warn him/her in exceptional circumstances, such as in the absence of experience or personal expertise in the field of credit.[26]
The French Court of Cassation has held that a person who owns 80% of the capital of the project, which is the guarantor, and who is a manager, must be considered warned.[27]
Thus, a client who holds a senior position in a company or has a regular income can easily be viewed as someone who regularly conducts banking transactions and is therefore presumed to be a warned client.
The French Court of Cassation also relied on the criterion of knowledge and experience in the financial field as a criterion for determining his/her status. It held that the execution of a similar transaction several years prior and repeated practice in the stock market entail the person performing it being considered a warned client.[28]
The most appropriate criterion for achieving the required protection for the client and distinguishing between warned and unwarned clients is the degree of experience in the financial field. This allows professionals and others to benefit from the obligation to warn, depending on the circumstances of each case.
2.2 Risks in banking operations
Credit risk is determined based on a personal criterion. If, at the time the loan is granted, it appears that the loan is not suitable for the client’s financial situation, either because it represents a significant financial burden or because their sources of income are unstable, the bank must warn the client to avoid liability.
To fully fulfill this obligation, the bank must not rely solely on the information and data provided by the client regarding their financial situation, as the client could provide false information to obtain credit. It must inquire about the client’s financial situation and their ability to pay the monthly installments within the allotted time before granting credit. If the bank determines that the loan is not restrictive and does not carry any risk, it has no obligation to the borrowing client, regardless of their situation, and therefore, its liability is not incurred in this case.
We can draw inspiration here from the case of Mr. and Mrs. Hoareau, where a credit institution, by notarial deed dated October 23, 2001, granted a loan of €76,224 to Mr. and Mrs. Hoareau to obtain a cash flow loan.
Later, believing that the bank should not have granted them such credit without warning them of the risks of the transaction, the couple filed a lawsuit against the bank seeking compensation for their loss. However, the Rennes Court of Appeal dismissed the case in a judgment handed down on January 11, 2008.
The Hoareaus then filed an appeal. They criticized the Court of Appeal, which recognized their status as unsophisticated borrowers, for, firstly, not having verified whether the warning obligation had been complied with, and secondly, for not having investigated whether the credit institution had done so. In other words, it seriously examined the borrowers’ actual financial capacity without focusing solely on their salaries.
The couple’s appeal was dismissed by a decision of the Commercial Division of the French Court of Cassation on July 7, 2009.[29] The Court of Appeal ruled that, after noting that the monthly loan payments amounted to €1,510.41, the borrowing couple owned the property and that Mr. Hoareau’s income had increased by September 1, 2001, to €3,811 per month, while his wife’s salary was €1,226.
The appeal judges also noted that Mr. Hoareau’s redundancy in October 2002 and his subsequent divorce were the cause of their financial difficulties.
Thus, for the French Court of Cassation, these investigations demonstrated that “on the date the contract was entered into, the credit was appropriate for the borrowers’ financial capacity and the debt risks arising from the granting of this loan”. It follows that the bank, “in the absence of such a risk, had no obligation to warn them”, and the Court of Appeal therefore legally justified its decision.
For information, the duty to warn is defined as the professional’s duty to draw the attention of the person entering into a contract with them to the negative aspects of the contract or its purpose.[30] Thus, in the context of a loan, the banker must inform his client of the risks of the planned transaction, that is to say the risk of not being able to meet the deadlines due to insufficient income and financial solvency.
However, in this case, the term “uninformed”, which was not challenged in this case by either the Court of Appeal or the Court of Cassation, takes on particular significance. All the decisions rendered to date imply that the borrower classified as uninformed, or the ordinary person, i.e., considered to be insufficiently informed of the prior transaction, is the creditor of this obligation to notify.
Credit institutions face risks related to the possibility of debtor insolvency. The recovery of borrowed funds is threatened when the latter encounter financial difficulties. Therefore, to reduce these risks, banks conduct a number of inquiries before granting a loan to assess the risk.
First, the borrower is interviewed and must provide various written information to assess their financial capacity. In addition, the Foundation obtains information through documents whose publication is required by law. The trade register, companies, and accounting documents therefore constitute a particularly reliable source of information, particularly when the accounts are subject to audit by the statutory auditor. In addition, the bank may be required to access certain files held by the Banque de France, such as individual loan repayment statements. However, for loans granted for large amounts for professional use, the credit institution may require its clients to conduct specific investigations, particularly by an audit firm.[31]
On this basis, the French Court of Cassation ruled on July 3, 2012, that since the borrower had not claimed that his pledge was disproportionate to his resources and assets, the Poitiers Court of Appeal was not required to determine whether he qualified as an unsophisticated borrower.[32]
Conclusion
Considering that the obligation to warn aims to ensure more effective client protection than a specialized professional bank, by requiring the latter to intervene in the client’s affairs to warn them of the risks surrounding the banking process.
Among the findings we have reached:
Not every professional is necessarily a risk advisor. The most appropriate criterion for ensuring the required client protection and distinguishing a risk advisor from a non-specialized advisor is the degree of experience in the financial field. This is evident from the conflicting decisions of the French Court of Cassation. It is worth noting that the Franco-Algerian legislature and judiciary have not adopted the criterion of distinguishing between an informed and an uninformed client;
If the bank’s commitment to warnings appears to conflict with the principle of non-interference in the client’s affairs, then in reality, its intervention in this commitment is achieved by implementing a plan and providing technical support in the form of warnings, which translates into the exercise of due diligence in accordance with banking practice;
Like the obligation to inform and the obligation to advise, the obligation to warn is only one part of the general obligation of prudence and diligence, and may occur before the conclusion of the contract or during its execution. We also recommend that the Algerian legislator, to protect the borrowing consumer, enact legal provisions to determine the controls on the obligations of banks, in particular
The Rwandan Courts Position on Impact of Criminal Proceedings on Arbitration Cases
Full text linkRwandan courts, including the Supreme Court, have confirmed that a principle known in French as “Le criminel tient le civil en état”, which is provided by the law relating to the criminal procedure and determines the relationship between criminal matter and civil matter that has a public order character. This means that neither the parties to the case nor the court can derogate from it whenever it comes to the knowledge of each. As a consequence, the criminal case has suspensive effect on the arbitration case as a civil case and ignoring this can lead to the award being set aside by a court. However, when it comes to its applicability, courts defer in interpretation on where and when to apply it.The Rwandan Supreme Court, in a case Soras Assurances Generales Ltd v. Tromea Ltd, refused to set aside the arbitral award in 2017, putting some limitation on the applicability where it maintained that this principle does not apply to every civil case involved by criminal action. However, in a case Kalpataru Power Transmission vs. Rwanda Energy Group held on 12.04.2024, the High Commercial Court set aside the arbitral award due to this principle, despite parties citing the Supreme Court jurisprudence in their pleadings, but the court advanced that the limitations are not clearly exhaustive. Therefore, since the Supreme Court did not clearly elaborate in which cases, the principle should be used and in which it should not, the present research, with the support of critical analysis of these two cases, is to probe into which effects the criminal case has on the arbitration case. The article proposes the possible recommendation of which criteria this principle can be applied for the limitation provided by the Supreme Court to be clear and exact.
Keywords: Criminal case, arbitration case, court position, Rwanda.
Introduction
Rwanda is positioning itself at the international terrain for investment. This means that not only infrastructure should be developed and improved, but also the justice sector must be considered. In doing so, Rwanda has enhanced judicial independence towards justice with zero tolerance to corruption. The current judicial policy encourages the parties to use the settlement of disputes in a way other than the one known court system, where other alternatives like mediation, arbitration, and conciliation have been advanced and encouraged to be used.
Moving forward, Rwanda became a signatory to the 1976 United Nations Commission on International Trade Law (UNCITRAL) arbitration rules by becoming the 143rd State Party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention.[1] As a result of the accession, Rwanda also passed law N° 005/2008 of 14/02/2008 on arbitration and conciliation in commercial matters.
In this regard, Rwanda established the Kigali International Arbitration Center (KIAC) as a sole arbitration institution in Rwanda to provide institutional support to domestic and international dispute resolution proceedings using Arbitration, Mediation, and other Alternative Dispute Resolution (ADR) mechanisms in 2010 through the law n°51/2010 of 10/01/2010 establishing the Kigali International Arbitration centre and determining its organisation, functioning and competence.
In the arbitration, a party may use institutional arbitration where they submit their case to institutional rules to be governed by them,[2] or ad hoc Arbitration where the parties and arbitrators independently determine the procedure without the help of an established arbitral institution.[3] As arbitration has both statutory justification and contractual justification, parties’ choice has a significant consideration in this matter concerning the arbitral tribunal, whether it will be institutional or ad hoc. In Rwanda, Kigali International Arbitration Center (KIAC) is the sole arbitration institution with that mandate.[4]
However, in the law N° 005/2008 of 14.02.2008 on arbitration and conciliation in commercial matters[5] and UNCITRAL arbitration rules 1976[6], which is the international model, the issue of public policy is observed diligently while empowering the arbitrators to decide on the case.
In Rwanda, one of the public policy rules found in Rwandan laws is a principle known in French as “Le criminel tient le civil en état” which is found in criminal law[7] and determines the relationship of criminal matter and civil matter.
This said principle means that civil action is suspended until the criminal case is finally adjudicated, if the criminal action was instituted in a court, before or during the civil proceedings. This rule has a public order character as the Supreme Court of Rwanda confirmed it in case of Soras Ltd Vs Tromea Ltd[8] and scholars like Michel Franchimont, Ann Jacobs et Adrien Masset in their book Manuel de procédure pénale[9] and the Belgian court.[10]
Although people do agree that this principle “Le criminel tient le civil en état” is of public policy character, its applicability is viewed differently especially in Rwandan courts. For example, in case Soras Assurances Generales Ltd Vs. Tromea Ltd,[11] mentioned above, the Supreme Court in 2017 refused to set aside the arbitral award maintaining that this principle does not apply to every civil case involved by criminal action. However, in a case Kalpataru Power Transmission vs. Rwanda Energy Group[12] held on 12.04.2024, the High Commercial Court set aside the arbitral award due to this rule despite parties citing the Supreme Court jurisprudence in their pleadings, and the court also cited it and interpreted it in another way.
Since the Supreme Court did not elaborate in which cases that this principle should be used and in which it should not, this pushes the present researcher under this article to probe into which circumstance this principle can be applied concerning arbitration procedings and when should not be applicable and which effects can this rule have on arbitration case.
Definition of Key Concepts
In this paper, the concept rule “Le criminel tient le civil en état”, the term Public policy, and arbitration will be the center of the discussion. That is why it is very important to see their definitional meaning in the case of arbitration, as the researcher refers to them in this research.
The Rule “Le Criminel Tient le Civil en État”
This is a maxim provided in the Law relating to the Rwandan Criminal Procedure, which means that as soon as the civil and criminal courts were seized, and the two actions related to the same facts, the civil judge has to stay the ruling.[13] This means that the civil judge is obliged to wait for the criminal judge to rule on the public action before ruling himself, as criminal matters enjoy priority over civil, commercial, labor, or administrative matters in court. In the Rwandan court, this principle has attained the value of public order (public policy) character that should not be derogated from by any party or court and it can be raised at any stage of trial.[14]
Public Policy in Arbitration Concept
The term public policy in the Rwandan arbitration act of 2008 is used interchangeably with the term public order used in Rwanda law on civil procedure of 2018. Although this law N° 005/2008 of 14.02.2008 on arbitration and conciliation in commercial matters did not provide a meaning of the concept public policy, it referred to in its article 51; the law N° 22/2018 of 29.04.2018 relating to the civil, commercial, labour and administrative procedure did. This law No 22/2018 of 29.04.2018 mentioned above stated in its article 2(1) that public order (policy) is a set of rules governing life in society that are set out for reasons of public interest and from which parties cannot mutually agree to derogate.
The Arbitration Concept
This concept may have several definitions as per the forum and researchers. For instance, Mayer Brown defines arbitration as an alternative form of dispute resolution to litigation, which does not require recourse to the Courts and is a consensual process in the sense that it will only apply if the parties agree it should.[15] According to the US Supreme Court, the arbitration is a matter of contract where parties to a contract can agree to resolve disputes privately through arbitration, rather than through the judicial system.[16]
According to Butler, the arbitration is a procedure whereby parties to a dispute refer that dispute to a third party, known as an arbitrator, for a final decision, after the arbitrator has first impartially received and considered evidence and submissions from the parties.[17] In Rwanda, the concept is defined as a procedure applied by parties to the disputes requesting an arbitrator or a jury of arbitrators to settle a legal, contractual or another related issue.[18]
Therefore, to sum up, arbitration can be summarized as an alternative dispute resolution (ADR) method, whereby a dispute is referred by parties to a private neutral third party, subject to existing legal framework, to adjudicate on the matter and render an enforceable and binding award.
Meaning of Arbitral Award
The other concept that has to be defined is the Award. Since Rwandan arbitration act, the New York Convention, and UNCITRAL Model Law on International Commercial Arbitration nkown as (the Model Law), do not provide a definition of ‘award’ it is useful to describe what qualifies as an award and what does not, to get a real definition of an arbitration award.
For lay people, the award is understood as simply a decision rendered by an arbitral tribunal, not by the court. However, not all decisions rendered by an arbitral tribunal are awards. It happens that the institution makes certain decisions as to prima facie jurisdiction of either the institution or the arbitral tribunal yet to be constituted. Those decisions are not considered as arbitral awards, as the actual decision on jurisdiction is usually reserved for the competence of an arbitral tribunal.[19] Instead, an award is a decision addressing a specific request by the parties to the arbitration. The tribunal may also issue a procedural order dealing with procedural provisions to be applied in the arbitration, and that order is not necessarily based on a request by one of the parties. Thus, an arbitral award is a tribunal’s decision about a specific request that a party has put to it.[20]
Then an award should be final and binding on the parties to the arbitration; which means it has res judicata effect. Therefore, once an award is rendered, except the procedures on correction of an award or rendering an additional award, the award may not be later revised by a tribunal. Furthermore, the arbitral award is also binding on the arbitrators themselves and they may not, except for the correction of specific errors – amend or revise it on their initiative.[21]
This means an arbitration award is a final decision made by an arbitral tribunal on a dispute. It’s similar to a court judgment and is usually binding and final. Once the arbitrator decides that all of the parties’ evidence and arguments have been presented, the arbitrator will close the hearings. This means no more evidence or arguments will be allowed. Then the arbitrator will issue the decision referred to as an award.[22]
To sum up, one can define an arbitral award as a ruling made by an arbitral tribunal, at the express request of the parties, which renders a final and binding decision on the matter. It may be subject to judicial review in setting-aside or enforcement actions.
The Position of the Principle that “Le Criminel Tient Le Civil En État” on Arbitration Proceedings in Rwandan Courts
This principle that “Le criminel tient le civil en état”, which is translated as “the criminal holds the civil in its state”, which means that civil action is suspended until the criminal case is finally adjudicated, if the criminal action was instituted before or in the course of civil proceedings.[23]
The principle “Le criminel tient le civil en état” is not only known in Rwanda but also in other countries, especially civil law countries like France,[24] Belgium, etc.[25] Its objective was to ensure consistency in civil and criminal court decisions. Anyone who could claim damages as a result of another person’s illegal activities could file a civil case in court to seek compensation. To avoid contradicting verdicts, the legislature ordered the civil judge to suspend the ruling.[26]
However, the problem in different countries adopting this principle has been to know whether this rule applies to all cases, including arbitration, and to what extent. The need to explore the impact of this principle “Le criminel tient le civil en état” on arbitration proceedings in Rwanda has been stimulated by the emergence of two cases, one is of the Supreme Court ruled in 2016, and the other is of the High Commercial Court ruled in 2024.
The Rule “Le criminel Tient le Civil en État” under Soras Assurances Generales Ltd Vs. Tromea Ltd Case
Summary of the Case
The case of Soras Assurances Generales Ltd Vs. Tromea Ltd is a result of the insurance policy of which SORAS AG Ltd had with TROMEA Ltd on 03.01.2014 covering fire and theft in that building. On 11.11.2014, TROMEA Ltd had an experience of a theft on its minerals in its stock equivalent to 14T and a value of 263,735 USD. Based on the insurance policy on 21.11.2014, TROMEA Ltd applied for indemnification price of stolen minerals to SORAS AG Ltd. However, both parties failed to reach an agreement.
Based again on that insurance policy which included an arbitration clause, TROMEA Ltd filed a case to the arbitrators claiming to be indemnified as per contract. The arbitral tribunal ordered SORAS AG Ltd to pay TROMEA Ltd 173,236,343 Frw as the value of mineral stolen and 12.992.726 Frw as interest and 5,000,000 Frw of contract breach damages. SORAS AG Ltd was not happy and appealed the award to the Commercial High Court, requesting the court to set the award aside. The court decided on the matter on 17.12.2015 but found the appeal unsubstantiated.
Soras AG Ltd appealed again in the Supreme Court claiming that the High Commercial Court ignored that the arbitral tribunal violated the rule of “Le criminel tient le civil en état”, which is of public policy. It added that the court failed to observe as there was a criminal case pending in court, but the arbitral tribunal refused to stay while waiting for the criminal case RP0643/14/TB/KMA outcome, which is a violation of public policy. Soras continued that in this regard the arbitral tribunal award should be set aside as per article 47 of the Arbitration Act of 2008 in Rwanda.
On the other hand, Tromea Ltd contested that this principle should not apply in this case because the case is not a civil damage resulting from a crime, instead it is a civil action based on contractual duty.
Court Decision
In deciding on the matter, the Supreme Court under paragraph 19 of its decision stated that what Soras AG Ltd argues regarding the public policy of the rule “Le criminel tient le civil en état” is correct. The court also cited different scholars like Michel Franchimont, Ann Jacobs, Adrien Masset, and foreign court decisions such as Cass., 23.03.1992, Pas., I, p. 664 and Cass., 01.02.1951, to support this decision.
Nevertheless, in the Paragraph 20 of a copy of the judgment, the court continued examining whether the rule of being of public policy is enough to be applied to the arbitration case in question. In Paragraphs 24 and 25, the court decided that the fact of the rule being of public order character is not enough to be invoked against any civil case, including the case under arbitration proceedings. Instead, the rule should only be applied when it is a civil action seeking damages resulting from a crime.
Analysis from the Case
Although this ruling has significant meaning on this issue but the court did not provide clear guidance as under which circumstance this principle should be applied because it is not principle that when the person sues in criminal action is requesting the damage since the criminal action can also be used in seeking the evidence to establish the truth to support the civil action which may include even the arbitration proceedings.
Parties to the contract may disagree on the performance of contractual obligations, and one party may present some specific piece of evidence that the other party claims to have obtained in criminal ways.
An example is when two parties conclude a supply contract for construction materials. In case of disagreement on payment, one party is advancing to have a delivery note, which the other party thinks to be a forged document. The same can be true of payment receipt being contested, where some say to have paid, whereas others claim the document is forged. In this scenario, the criminal action needs to establish proof of who is right and the outcome from the criminal case is the one to solve the problem, as no civil action is competent to qualify a document as forged. How can then the arbitral tribunal decide without this piece of evidence, and what should be the justification of the award?
On the other hand, one can say that the party may resort to an expert to clarify the authenticity of the document, but still the arbitrator has no power to judge on the matter relating to a criminal act as it is of public policy where even parties have no say about it.
Then it seemed that the Supreme Court still left the ambiguity on when to use the rule “Le criminel tient le civil en état” while it confirmed that the rule is a public policy.
The Rule “Le Criminel Tient le Civil en État” under Kalpataru Power Transmission v. Rwanda Energy Group Case
Despite the ruling of the Supreme Court on the rule “Le criminel tient le civil en état” of 2016, recently in 2024 the High Commercial Court took another position which also appears to have a meaning concerning criminal action vis a vis arbitral proceedings on the said rule.
3.2.1. Summary of the Case
The Kalpataru Power Transmission v. Rwanda Energy Group has started when Rwanda Energy Group sued Kalpataru Power Transmission according to the contract relating to building an electric power plant and towers for electric wires to DRC of 19.11.2013 in Dispute Board proceedings as per their contract.
In this contract, parties have a dispute on Price Adjustment Claim where REG disagrees that it does not have remaining unpaid amount to KPTL. There was also a security guarantee of 02.10.2019 REG requested its payment. Both parties also had an issue on how the project was implemented, where REG claimed that it had been implemented with defects. REG again accused KPTL of fraud and bribery to provide misleading result of concrete strength test results.
On 25.10.2017, KPTL started DAB (“Dispute Board”) proceedings as per the contract on the issue of “Price Adjustment Claim” as article 8.2 of General Conditions”. KPTL claiming that the decision taken to know whether it has not complied with time frame to make a “Price Adjustment Claim” and to examin whether “Settlement Agreement” should be invalidated because it has been concluded under duress as per the Articles 55, 56 of contract law in Rwanda.
On 01.09.2019, DAB (“Dispute Board”) took a decision that REG failed to prove that KPTL has engaged in fraud and corruption, and that KPTL did not go beyond the time limit for making a “Price Adjustment Claim” on money equivalent to 24 million USD. The DAB (“Dispute Board”) confirmed that the settlement agreement became invalid as it was done under duress.
After the decision REG was not dissatisfied. On 04.11.2019, it filed a case under ad hoc arbitration as per UNCITRAL claiming that the arbitral tribunal has to order that KPTL delayed to provide Price Adjustment in 28 days provide in article 8.1.1 of General Conditions; confirms that Settlement Agreement is valid; and to get miscellaneous damages which the arbitral tribunal may find appropriate. In rebutting the allegations, KPTL maintained that all the allegations are false accusations and claimed damages.
On 20.09.2021 the arbitral tribunal took a decision that REG loses the case as it failed to prove its allegations. The tribunal held also that Price Adjustment was made on time as per article 8.1.1. General Conditions. On the fact of the validity of the Settlement Agreement, the tribunal held that it was done under duress, therefore invalidated it. The tribunal also stated that REG failed to prove the fraud or corruption act of KTPL.
REG was not satisfied again and filed a case to the Commercial High Court on 15.10.2021 seeking to set aside the Arbitration Award N° 2020-2021/155 which was taken. REG was based on the fact that arbitral tribunal did not observe the public policy rule under the principle “Le pénal tient le civil en état” which is of public order character. It continued also that the tribunal did not give time to explain their case as Article 47 of the arbitration act in Rwanda states, and the 34 UNCITRAL Model Law on International Commercial Arbitration. It pointed out that there is a criminal case in court for this matter registered as RP/ECON 00012/2021/TGI/NYGE which condemned some employees of KPTL for those crimes although they appealed in the High Court and the case was registered as RPA/ECON 00059/2023/HC/KIG.
However, KPTL defended that this incident or objection should not have been admitted. They cited a case law of Engen Rwanda Ltd vs ETELEC Ltd[27] showing that the court in this case refused to set aside the arbitral award due to what was said to be public policy when an arbitral tribunal took a decision based on unsigned document and expert who did not take oath as per the law on evidence.
KPTL added also t
Cybersecurity in the Digital Era: Between Digital Transformation and Protection Challenges
Full text linkThe enhancement of cybersecurity represents a cornerstone for the successful implementation of digital transformation initiatives across various sectors. It plays a critical role in safeguarding digital systems against cyber threats and attacks that could disrupt operations and compromise continuity. As reliance on technology grows and smart systems become increasingly integrated into service delivery, the demand for a resilient and trustworthy cybersecurity infrastructure has become indispensable.
Cybersecurity serves as a fundamental enabler of trust in the integrity and confidentiality of data, protecting it from manipulation, breaches, or unauthorized disclosure. This, in turn, fosters a secure and transparent digital environment for information exchange, which enhances institutional performance and reduces operational costs arising from security breaches or technical failures.
The findings of this study indicate that nations and organizations possessing advanced cybersecurity capabilities—and investing proactively in emerging technologies—are more equipped to assert effective control over cyberspace. Such capacity ensures the realization of digital security and strengthens national sovereignty. Cybersecurity thus emerges as a strategic instrument for digital defense and the protection of national interests at both domestic and international levels, positioning it as a vital element in achieving comprehensive and sustainable digital transformation.
Keywords: Cybersecurity, digital transformation, data protection, cyberattacks.
Introduction
Contemporary society is situated at the core of the knowledge and information era, an era defined by the ubiquity of the web and pervasive networked communication, where the flow of information now surpasses any previously known form of exchange in human history. The transformations that characterize this phase represent a qualitative leap that far surpasses previous stages of human development, particularly in terms of scope, speed, capacity, and informational richness.
This evolving reality has shifted the world from geographical proximity to a condition of spatial convergence, transcending even Marshall McLuhan’s seminal notion of a “global village”. The unprecedented velocity and volume of information circulation have resulted in what is often termed the “information explosion”, a phenomenon that carries profound positive and negative implications for the global community.
Simultaneously, this explosion has engendered a spectrum of security challenges of varying magnitude and impact, affecting both individuals and nation-states. These challenges increasingly necessitate intervention to protect sensitive information, especially that which pertains to national sovereignty and state security, within the framework of what is now understood as “cybersecurity”.
In today’s increasingly digital societies, information functions as a core axis across economic, political, and social dimensions, rendering it highly susceptible to threats and attacks. This underscores the urgent need to implement robust safeguards against cybercrime in its many forms. The imperative becomes all the more acute as information continues to serve as a primary source of both wealth and intellectual capital.
The deepening interconnectivity among institutions worldwide compounds the risk: a single breach within one entity’s digital infrastructure can rapidly cascade into broader systemic vulnerabilities due to the intricate web of informational dependencies that now characterize global institutional operations.
Moreover, cyberattacks have evolved into a formidable instrument within the landscape of international competition, particularly in the economic domain, where such attacks may serve espionage or sabotage functions between states. The severity of these threats escalates dramatically when critical infrastructure is targeted, as such incidents have the potential to trigger geopolitical conflict, especially in already volatile regions.
Consequently, cyberattacks now pose a direct threat to regional and global peace and security. These dynamics make it increasingly necessary to recognize cybersecurity not merely as a technical concern but as a strategic imperative, an essential dimension of national security and a cornerstone of any comprehensive digital transformation agenda. Given the strategic significance and high-stakes nature of cybersecurity risks, an increasing number of nations are integrating cybersecurity measures into their overarching national security doctrines.
In light of the foregoing, this study is guided by the following research question:Is there a measurable correlation between the various dimensions of digital transformation and the level of cybersecurity implemented within institutional frameworks? Furthermore, to what extent does digital transformation contribute to reinforcing, or potentially undermining, cybersecurity?
To address this question, the research adopts an inductive approach, beginning with partial observations and analyses of real-world and contemporary cases associated with digital transformation and its implications for cybersecurity. This includes the monitoring of incidents such as cyberattacks targeting critical infrastructure, data breaches, and the implementation of modern protective strategies by specific countries and institutions. Additionally, the analytical method is applied to examine these incidents and discern the nature of the relationship between digital transformation and the increasing necessity for cybersecurity.
MethodologyThis research is based on a doctrinal-analytical approach, which involves the examination of international and national legal documents, strategic frameworks, and policy acts. A comparative legal method has also been employed, entailing a systematic comparison of models from different jurisdictions. In addition, the study integrates a case study approach, focusing on detailed discussions of specific examples of legal practice. The research materials include: normative acts and official documents (international conventions, EU directives, U.S. federal standards, Algerian national legislation); reports of international organizations (current publications of ENISA, NIST, and other institutions); academic literature (scholarly works published over the past decade reflecting contemporary trends in digital transformation and cybersecurity); and practical cases (decisions of international courts and real-life cyberattack examples illustrating the issues under examination). The article relies primarily on normative and documentary sources. Quantitative analysis, including modeling or statistical processing of cybersecurity indices, does not fall within the scope of this study; however, this direction is identified as a perspective for future research.
1. Digital Transformation as a Catalyst for the Evolution of Cybersecurity
Amid the rapid proliferation of digital technologies and the growing dependence of institutions on intelligent solutions across a wide array of sectors, digital transformation has emerged as a foundational force in reshaping the landscape of work environments and service delivery.
Parallel to this transformation is the escalating urgency to safeguard data and protect digital infrastructure from a surge in cyber threats, rendering cybersecurity a critical and continuously evolving domain. Within this context, digital transformation can be seen not only as a driver of innovation and operational efficiency but also as a catalyst for the advancement of cybersecurity mechanisms and methodologies. These advances align with the increasing complexity of digital threats and the elevated expectations placed on institutions to secure information effectively.
1.1. Digital transformation and the variables of the digital age
Contemporary global dynamics are characterized by transformative changes spurred by the digital revolution, which has redefined economic, social, educational, and security paradigms. With the relentless acceleration of technological innovation, digital transformation has shifted from being a strategic option to becoming an imperative, imposed by the defining variables of the digital era, including artificial intelligence, big data analytics, and the Internet of Things.
These technological variables do not merely influence the nature of services and infrastructure; they also reshape fundamental notions of operational efficiency, responsiveness, and communicative interaction. As a result, both individuals and institutions are compelled to embrace innovative digital frameworks capable of adapting to the pace and demands of this transformation.
1.1.1. The concept of digital transformation
The current era is marked by an intensifying digital transformation, which has established itself as a global trend permeating all domains due to persistent technological advancement. This transformation has redefined how efficiency and effectiveness are conceptualized within institutional structures and has led to the emergence of new perspectives concerning institutional performance and excellence.
As a result, adopting digitalization has become a strategic imperative, one that enables the initiation of systemic change and the pursuit of excellence across a range of sectors. Consequently, the discussion must address the concept of digital transformation by first providing its definitions and then exploring its core dimensions.
1.1.1.1. Definition of digital transformation
Digital transformation is defined as: “A modern business model that utilizes digital technologies to develop innovative products and services, as well as the methods through which they are delivered, with an emphasis on addressing the needs of customers or end users”.[1]
It is further defined as: “The process of integrating digital technologies into business operations, resulting in a radical and comprehensive transformation in the way value is created and delivered to the end user, while simultaneously reflecting a cultural shift that institutions must adapt to”.
In a similar vein, it is described as: “Innovation driven by a comprehensive transformation process that incorporates existing digital technologies into methods for generating value, conducting production, and managing business operations, particularly by redefining the underlying thought processes”.[2]
Accordingly, digital transformation can be defined as a comprehensive and strategic process aimed at the systematic integration of digital technologies across all facets of institutional operations. Its purpose is to foster the innovation of new products and services, refine the mechanisms through which value is delivered to the end user, and instigate cultural and organizational transformation. This process compels institutions to fundamentally reconsider their business models, leadership methodologies, and cognitive frameworks to align with the complex and evolving demands of the digital age.
1.1.1.2. Dimensions of digital transformation
Digital transformation represents a multifaceted phenomenon, within which two principal dimensions are particularly prominent:[3]
1.1.1.2.1. Digital technologies
At its core, digital transformation is driven by ongoing advancements in digital technologies. Scholarly literature consistently identifies three primary technologies as central to institutional digital transformation: the Internet, digital analytics, and cloud computing. These technologies are interrelated and have witnessed exceptional development in recent years. Their combined capabilities have enabled institutions to restructure and optimize their internal processes and service delivery in a digitally integrated and comprehensive manner.
1.1.1.2.2. User experience
Digital transformation places the end user, be it a consumer or an employee, at the center of institutional priorities. Contemporary users increasingly demand superior quality, enhanced flexibility, and personalized engagement in the products and services they consume. They also expect immediate, context-aware responses to their shifting needs. This reality is especially pronounced among digital-native generations, who display heightened technological literacy and a pronounced inclination to share their experiences through social media platforms.
To accommodate these continually evolving expectations, institutions must reassess their operational behaviors and adopt marketing strategies that resonate with contemporary consumption patterns. Consequently, digital transformation often initiates with a reconfiguration of marketing functions through the deployment of advanced customer relationship management (CRM) tools. These systems are progressively integrated with social network analysis functionalities to enrich the interactive and participatory aspects of customer engagement.
This transformative impact extends further to human resource management, particularly through the utilization of employee relationship management (ERM) systems. Within this framework, employees are perceived as “internal customers”, and significant efforts are directed toward delivering a workplace experience that mirrors the standard of service extended to external clients.
1.1.2. Requirements of digital transformation
The implementation of digital transformation spans several domains, notably technology, data, and human capital. These requirements are outlined in greater detail below:
1.1.2.1. Technologies
Digital transformation is predicated on a cohesive and sophisticated technological ecosystem encompassing hardware, data repositories, storage infrastructures, and software platforms, all of which function within advanced IT environments and data centers designed to guarantee both high performance and operational continuity. This ecosystem must be capable of delivering consistent service quality that satisfies the expectations of the organization’s personnel, clients, and external partners.
To ensure these outcomes, it is essential to deploy specialized technical teams tasked with overseeing and maintaining the technological infrastructure and communication networks with precision, dependability, and efficiency.
1.1.2.2. Data
Business organizations must engage in consistent and effective data management and analysis to ensure the availability of qualitative, reliable, and comprehensive information. This requires the implementation of advanced statistical analysis tools and the development of predictive capabilities that assist in shaping future strategic orientations. Continuous monitoring of data flows, coupled with their optimal utilization, is essential for achieving institutional objectives and realizing broader strategic goals.[4]
1.1.2.3. Human resources
Human resources constitute a fundamental pillar in advancing digital transformation, as they represent one of the most critical assets for confronting the complex challenges and pressures that institutions currently face. These resources serve as a driving force for progress and development across various sectors.
Nonetheless, many countries, particularly those in the developing world, grapple with substantial obstacles stemming from the scarcity of skilled professionals equipped to navigate and adapt to the demands of the digital environment. This deficiency poses a significant barrier to the integration of advanced technologies and the effective implementation of digital transformation initiatives.
Therefore, there is a pressing need to formulate strategic plans aimed at cultivating and enhancing human capacities. This includes attracting new talent with a deep understanding of the digital transformation landscape and leveraging existing technological resources to support institutional advancement in this domain.
1.2. The evolution of cybersecurity in response to digital transformation
In tandem with the accelerating momentum of digital transformation and the growing institutional dependence on intelligent systems and digital platforms, the protection of data and digital systems has assumed critical importance. This evolving reality has given rise to a complex threat landscape that demands sophisticated security solutions capable of addressing the emerging risks within cyberspace.
As a direct outcome of this transformation, the cybersecurity field has undergone notable expansion, particularly in the development of new tools and strategic approaches. Increasingly, cybersecurity operations rely on artificial intelligence, data analytics, and machine learning to anticipate, detect, and neutralize potential cyberattacks. Consequently, digital transformation has not only introduced novel security challenges but has simultaneously driven the evolution and enhancement of cybersecurity capabilities.
1.2.1. The concept of cybersecurity
This section outlines the concept of cybersecurity by presenting its definitions and identifying its principal dimensions.
1.2.1.1. Definition of cybersecurity
Cybersecurity is a relatively modern concept, first introduced in the United States during the late 1980s. However, it did not attain widespread recognition and application until the early 2000s, coinciding with the rapid acceleration of technological development and the parallel escalation of cyber threats and vulnerabilities, which have since emerged as significant global security concerns.
Cybersecurity is defined as: “A set of technical and administrative measures used to prevent unauthorized access to computer networks or to prevent their misuse, in addition to the recovery of the electronic information they contain, with the aim of ensuring the continuous operation of information systems and safeguarding the security, confidentiality, and privacy of data for actors within cyberspace”.[5]
The American Institute of Certified Public Accountants (AICPA) defined cybersecurity as: “a set of practices and procedures designed to protect data and information from cyber threats”.[6] The American Institute of Certified Public Accountants (AICPA) has established a comprehensive set of cybersecurity standards for the accounting profession, including the Statements on Standards for Accounting and Review Services (SSARS) and the Trust Services Principles and Review Services. These frameworks are intended to assist accountants in safeguarding the digital business environment through the implementation of effective data security and privacy controls, thereby reinforcing confidence in the systems and processes underpinning the delivery of professional services.[7] Conversely, the National Institute of Standards and Technology (NIST, 2024) has adopted the Cybersecurity Framework (CSF 2.0) as a key international reference for the development of protection strategies and the management of risks at the institutional level.[8]
The Securities and Exchange Commission (SEC) has defined cybersecurity as the protection of systems, networks, and digital data from cyberattacks and unauthorized access. In other words, the SEC addresses cybersecurity in the context of safeguarding sensitive information belonging to investors and registered companies.[9]
As such, cybersecurity encompasses a domain dedicated to formulating procedures and adopting standards and protective measures to address threats, prevent security breaches, and reduce the potential impact of such incidents to the lowest possible level, even in worst-case scenarios.
From an operational perspective, cybersecurity can be summarized through the following key elements:
Cybersecurity comprises a collection of defensive tools and mechanisms designed to detect intrusions and prevent unauthorized access;
It includes the safeguarding of computer networks and their associated data from infiltration, malicious tampering, or disruption attempts;
Cybersecurity involves the mitigation of risks posed by malicious attacks on software, hardware, and networks. This includes tools for intrusion detection, virus mitigation and removal, the application of authentication protocols, and the activation of secure, encrypted communications;[10]
More broadly, cybersecurity is understood as an ensemble of practices and technologies developed to defend systems, networks, and software infrastructure against all forms of digital attack, whether originating from hacking attempts, malware infections, or other cyber threats targeting the integrity of information and digital assets.
1.2.1.2. Foundations of cybersecurity
In a digital world where dependence on technology is continuously growing, cybersecurity has become an indispensable necessity for safeguarding data and systems against cyberattacks. Recognizing the true significance of cybersecurity is critical at both the individual and institutional levels. In general, cybersecurity is centered on three primary objectives:
1.2.1.2.1. Confidentiality
Protection of personal data and sensitive information: Cybersecurity offers effective mechanisms to control access to data, ensuring that only authorized individuals or entities can retrieve or manipulate it. This is essential for protecting personal data such as names, addresses, and financial records, as well as sensitive institutional information, including patents and proprietary designs.
Prevention of data theft and fraud: Cybersecurity plays a pivotal role in preventing attempts by intruders to steal data, thereby substantially lowering the risks of fraud and identity theft.
1.2.1.2.2. Integrity
Ensuring data accuracy and completeness: Cybersecurity safeguards the integrity of data by preventing unauthorized alterations or damage. This function is vital for maintaining the precision and reliability of data, which directly influences operational effectiveness and the soundness of decision-making processes.
Protection f
License for Polygamy and the Spread of the Phenomenon of Informal Marriage: A Comparative Study between Islamic Law and Algerian Law Supported by Judicial Statistics
Full text linkIn many Arab and Islamic countries, family law historically imposed few restrictions on polygamy beyond the conditions prescribed by Islamic jurisprudence. These conditions typically included limiting polygamy to up to four wives, the ability to provide adequate financial support for each wife and a commitment to ensuring justice and equity among them.
In Algeria, family law, as established in 1984, initially permitted polygamy as the default legal framework, albeit with specific restrictions designed to prevent its misuse by husbands. Among these restrictions were the requirements for financial capability and the fair treatment of all wives. However, the law did not mandate judicial authorization for the practice of polygamy.
In 2005, the introduction of Law No. 05/02, which amended the 1984 family law, altered this provision by instituting a requirement for judicial authorization before a man could take a second wife. This change necessitated that the husband obtain permission from the president of the court in the jurisdiction where the marriage was registered.
Keywords: License, polygamy, marriage, Islamic law, Algerian law.
Introduction
In many Arab and Islamic countries, family law historically imposed few restrictions on polygamy beyond the conditions prescribed by Islamic jurisprudence. These conditions typically included a limitation of up to four wives, the ability to provide adequate financial support for each wife and a commitment to ensuring justice and equity among them. However, with the independence of Arab and Islamic nations, their membership in the United Nations, and the ratification of various international human rights conventions, the landscape of family law has evolved in line with broader societal progress.
The endorsement of international agreements, most notably the 1967 Declaration on the Elimination of Discrimination Against Women and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has played a pivotal role in advancing the rights of women. These developments shifted the debate from a broader international arena to more localized, national discussions within each country.
As a consequence of these changes, many Arab countries revisited and amended their family laws to ensure alignment with the principles laid out in these global treaties, thereby granting women more rights and protection under the law.
In Algeria, family law, as established in 1984,[1] initially permitted polygamy as the default legal framework, albeit with specific restrictions designed to prevent its misuse by husbands.[2] Among these restrictions were the requirements for financial capability and the fair treatment of all wives. However, the law did not mandate judicial authorization for the practice of polygamy.
In 2005, the introduction of Law No. 05/02, which amended the 1984 family law, altered this provision by instituting a requirement for judicial authorization before a man could take a second wife. This change necessitated that the husband obtain permission from the president of the court in the jurisdiction where the marriage was registered.
While this amendment aimed to regulate polygamy more strictly, it inadvertently encouraged the growth of informal marriages (unregistered marriages), as some men sought to circumvent the new judicial requirements. These informal marriages could later be formalized, raising questions about the effectiveness of the legal amendments in controlling polygamy.
The central issue raised in this context is the following: To what extent has the Algerian legislator succeeded in balancing the religious and civil aspects of polygamy through the requirement for judicial authorization? Did this measure inadvertently make informal marriage a viable alternative to polygamy? And, to what degree has it effectively safeguarded Algerian families from potential disintegration, considering that the family is regarded as the cornerstone of society?
This study aims to explore the regulatory framework governing polygamy under Algerian law and to investigate the proliferation of informal marriages, assessing whether these marriages have emerged as an alternative to traditional polygamy.
The scope of the study is to analyze the legal texts governing polygamy in Algeria, examine the legal recognition of informal marriages, and gather field data reflecting the reality of informal marriage practices in Algeria. This will include an exploration of the factors that have contributed to the spread of informal marriages following the 2005 amendment to the family law.
Regulations of Polygamy under Algerian Law
The Algerian legislator has historically allowed polygamy as a general rule but has sought to regulate the practice through a series of legal and religious constraints designed to limit its occurrence and ensure the dignity of women and the stability of society. These regulations ensure that polygamy is not reduced to a mere transient whim but is instead treated with the seriousness it deserves.[3]
1.1. Religious Restrictions on Polygamy
Islamic law permits polygamy but sets specific conditions:
A man may have up to four wives;
He must be able to provide justice and financial support to each of them.
Maximum Number of Wives
Islam allows polygamy but limits the number of wives to four. Any attempt to marry more than four is strictly prohibited, a prohibition that is well-established in the Qur’an, the Hadith, and the consensus of scholars.
As stated in the Qur’an, Surah An-Nisa (4:3):
“If you fear that you will not deal justly with the orphans, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hands possess. That is more suitable that you may not incline to injustice”.
It is reported that Qais ibn al-Harith, who converted to Islam and had eight wives, was advised by the Prophet Muhammad (PBUH) to select four of them and divorce the others.[4]
Ability to Ensure Justice
If a man is unable to maintain justice among his wives, he is prohibited from marrying more than one, as stated in the Qur’an:
“Then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hands possess. That is more suitable that you may not incline to injustice”. (Qur’an, Surah An-Nisa 4:3)
In such a case, limiting oneself to one wife is recommended if the man fears he cannot be just, and the verse is explicit in its guidance.
The Prophet Muhammad (PBUH) also said:
“If a man has two wives and he inclines to one of them, he will come on the Day of Judgment with his side leaning”.
The justice required between wives includes matters within human control, such as providing for their food, drink, housing, kind treatment, and time spent with each.[5]
Ability to Provide Financial Support
Islamic law restricts polygamy to those who have the financial means to support more than one wife. If a person lacks sufficient means to provide for multiple wives, it is not permissible for him to marry more than one.
The ability to provide financially is directly tied to the ability to ensure justice, as this involves the material capacity to meet the necessary conditions for marital life.[6] According to a 1987 ruling by the Algerian Supreme Court, financial equality between wives must be maintained, and each wife is entitled to her separate living accommodation.[7] However, achieving this is extremely difficult in the current social and economic circumstances.
Legal Restrictions on Polygamy
In addition to the religious requirements, the Algerian legislator has imposed legal conditions on polygamy, including the need to provide a valid reason for the marriage, to inform both the first and the prospective wife of the marriage, and to obtain judicial authorization. These legal constraints are as follows:
Proof of a Valid Reason
The Algerian legislator requires a man to demonstrate a valid reason for polygamy; however, the law does not clearly define what constitutes a “valid reason”. To address this ambiguity, a ministerial circular issued by the Ministry of Justice on December 23, 1984, clarified that a valid reason for polygamy must be supported by a medical certificate from a qualified doctor, confirming the wife’s infertility or a serious, chronic illness.[8]
However, after the 2005 amendment to the family law (Order No. 05/02), the previously issued circular was no longer applicable. The definition of a valid reason was expanded to include any reason provided by the husband, provided it is substantiated. Judges were granted discretionary power to assess these reasons. It is recognized that valid reasons can vary depending on the time and circumstances and may include factors such as the husband’s dissatisfaction with his wife, frequent travel leading to prolonged absences, or other personal issues.[9]
By broadening the definition of a “valid reason” and granting judges discretionary authority, there is concern that many husbands wishing to practice polygamy may hesitate to disclose the true reasons behind their decision. If the reasons are less substantial than infertility or a serious illness, proving them in court becomes challenging, which may lead to the circumvention of formal marriage through informal (unregistered) marriages, especially when judicial authorization cannot be obtained.[10]
2.2. Requirement to Inform the First Wife and the Prospective Wife
According to Article 8, paragraph 2 of the Algerian Family Law, the legislator requires that the husband inform both the first wife and the woman he intends to marry about his desire to practice polygamy:
“The husband must inform the first wife and the woman he intends to marry about his intention to marry another”. Thus, the husband wishing to marry a second wife must notify his first wife of his intention, and similarly, he must inform the second woman of his previous marriage. While the law does not specify the exact method of notification, this could likely be done through formal means, such as a registered letter with acknowledgment of receipt or via a judicial officer. In either case, the court must confirm that these notifications were made before approving the marriage.
If the husband fails to comply with this requirement, the marriage is considered to have been concluded under fraudulent circumstances, and Article 8 Bis of the Family Law allows the first wife to file for divorce on the grounds of fraud.
2.3. Requirement for Judicial Authorization by the Court President
Article 8, paragraph 3 of the Family Law states:
“The president of the court may grant authorization for a new marriage if he is satisfied that both parties agree and the husband proves a valid reason, as well as his ability to provide justice and meet the necessary conditions for marital life”.
Additionally, paragraph 2 stipulates:
“The request for marriage authorization must be submitted to the president of the court where the marital residence is located”.
From an analysis of this article, it is evident that the legislator grants the judge broad discretionary power to either grant or deny permission based on the fulfillment of certain legal conditions. These conditions include proving a valid reason for the marriage, the ability to maintain justice, and the financial means to support the marriage. Furthermore, the approval must be accompanied by the informed consent of both parties, knowledge alone is one thing, but consent is another, as confirmed by the Algerian Supreme Court in its ruling on January 19, 2005, which stated:
“Since the appellant did not prove the respondent’s consent to the second marriage, knowing about it is one thing, and consenting to it is another”.[11]
The judge must also verify the husband’s financial status and his ability to ensure justice and provide for the wives based on concrete evidence, such as a salary certificate, after conducting the necessary investigations. As previously noted, the concept of a valid reason is left to the judge’s discretion.
With all these conditions governing polygamy, the situation becomes more complex with the introduction of Article 8 Bis 01 of the Family Law, which states:
“The new marriage is annulled before consummation if the husband has not obtained the necessary judicial authorization in accordance with the conditions outlined in Article 8 above”.
From the perspective of legal interpretation, particularly through the principle of qiyas (analogy), one might wonder about the status of the new marriage if judicial authorization is not obtained after consummation. There is a significant scholarly opinion that once the marriage is consummated, it becomes valid, even without the required authorization.
This view holds that the annulment decree issued by the judge would no longer apply once the marriage is consummated.[12] This interpretation could lead to the diminishing importance of Article 8, making informal marriage (which can later be legalized) a practical solution for some couples.
Informal Marriage as an Alternative Solution to Polygamy
Given the constraints imposed on husbands wishing to practice polygamy, many turn to informal marriage as an alternative that allows them to bypass some of these legal requirements.
3.1 Definition of Informal Marriage
Informal marriage refers to an unregistered marital contract, which takes place through a mutual agreement between the man and the woman, typically documented through a private written contract that both parties sign. While the process follows the general formalities of marriage, including witnesses, the marriage is not formally registered with the authorities or a civil registrar, which is a legal requirement under Algerian law.[13]
As per Article 18 of the Family Law: “Marriage is contracted before a notary or a legally authorized official, in accordance with the provisions of Articles 9 and 9 Bis of this law”.
Furthermore, Article 4 of the same law states: “Marriage is a consensual contract between a man and a woman, conducted according to the religious law”.
Article 22 adds: “Marriage is established through an extract from the civil status register. If not registered, it is validated by a judicial ruling. The judicial ruling must be registered in the civil status register by the efforts of the public prosecutor”.
From the interpretation of these provisions, marriage is fundamentally a consensual contract, and the formal requirement is for its proof, not its formation. If a marriage is not registered despite fulfilling the essential conditions, any interested party can prove the marital relationship before the court based on Islamic jurisprudence. This is known as informal marriage.[14]
3.2. Informal Marriage as a Refuge for Those Seeking Polygamy
The Algerian legislator has imposed strict regulations on polygamy, requiring prior authorization from the president of the court in the jurisdiction where the marital residence is located. This measure is designed to provide legal safeguards, primarily to protect women’s rights within the institution of marriage. However, these stringent requirements have driven many individuals to seek alternative solutions, resulting in a significant rise in informal marriages, particularly after the amendments to the Family Law in 2005, especially those concerning Article 8.
Despite the mandatory requirement for mosque imams to refuse to officiate any marriage without a civil marriage certificate, an attempt to curb the rise of informal marriages, this prohibition has been largely ineffective. The disparity between the number of authorized polygamous marriages and informal marriages underscores this challenge.[15]
Statistics from the registry office of the Ain Témouchent Court reveal a troubling trend: between 2008 and May 2018, the court president issued only fifty judicial authorizations for polygamy. In contrast, during the same period, 1,350 cases were recorded for the recognition of informal marriages.[16]
More recent statistics (from 2019 to the first half of 2024) show a continued pattern:[17]
An analysis of these statistics clearly shows that the number of recognized informal marriages consistently outnumbers the approved polygamy requests. This highlights a marked preference for informal marriages, likely driven by the bureaucratic hurdles and legal restrictions surrounding formal polygamy.
In these informal marriages, it is common for the second wife to eventually file a petition to officially recognize the union. This legal recognition enables the first wife to file for divorce, as polygamy is considered a valid ground for divorce under Article 53 of the Family Law.
Thus, the law, intended to restrict polygamy, has inadvertently fueled the rise of informal marriages, as individuals circumvent the formal requirements. Once the informal marriage is recognized through judicial intervention, it is formally registered in the civil status records by the public prosecutor, granting the second wife the same legal rights as if the marriage had been officially recognized from the outset.[18]
The Algerian Supreme Court further reinforced this understanding in its ruling of 1991, affirming that:
“Whenever an informal marriage meets all the necessary conditions and requirements, the court’s decision to validate this marriage, register it in the civil status records, and legitimize the children born from it is consistent with both Islamic law and the civil code”.
The Supreme Court’s rulings have established that informal marriages can be legally recognized through testimony from relatives, two male witnesses, or one male and two female witnesses. However, it is not permissible to establish the validity of a marriage based solely on the testimony of two women or a single witness.[19]
Additionally, one of the witnesses cannot be the legal guardian of the woman involved in the marriage. Importantly, there is no time limit for recognizing informal marriages, and such unions can even be validated after the death of one of the spouses, provided sufficient testimony and an oath are presented.
For the court to accept witness testimony, the witnesses must demonstrate that they were present at the marriage contract, the reading of the Fatiha (the opening chapter of the Quran), or at the marriage celebration and that their testimony is consistent with other available evidence. Judges are required to conduct thorough investigations to verify the facts, as rejecting a claim to confirm a marriage stemming from an illicit relationship is considered a sound judicial decision.[20]
Conclusion
The Algerian legislator, through the amendment of the Family Law by Order No. 05/02, has narrowed the scope of polygamy to protect women’s rights and preserve family stability. However, the focus has been primarily on safeguarding the rights of the first wife, overlooking the rights of the woman the husband intends to marry. If the husband cannot obtain the required authorization, informal marriage often becomes the alternative. This is particularly true in light of Article 08 bis 1 of the Family Law, which annuls a marriage before consummation if performed without the necessary permission, suggesting that after consummation, the marriage can only be later proven and registered.
Since the 2005 amendment, informal marriages have risen significantly, and these unions are increasingly brought before the courts for official recognition. This undermines women’s dignity, stripping them of basic rights like alimony, public benefits, inheritance, and other legal protections. The effects also extend to children born from informal marriages, who lose rights typically afforded to those born from formal unions, such as inheritance and familial rights.
Based on the above, we recommend the following:
The legislator should consider religious principles underpinning the state and allow polygamy within Sharia law limits. Restricting polygamy may lead to an increase in illicit relationships, resulting in harmful consequences, especially concerning children and lineage. The European model, which prohibits polygamy, cannot be a suitable comparison given Algeria’s religious and cultural context;
Annulments before consummation in polygamous cases without judicial authorization contradict Sharia principles if the marriage meets the essential requirements within Sharia law;
Authorities should launch awareness campaigns to reduce informal marriages and illicit relationships. These practices negatively affect family and community stability and security.
Bibliography
Academic Articles:
Omaran, F.M. (2005). Informal Marriage and Other Forms of Unofficial Marriage. Modern University Press, Alexandria.
Academic Articles:
Mohamed Boumediene, The Authority of the Judge in Granting Permission for Polygamy: A Comparative Study, published online: https://platform.almanhal.com/Files/2/40548.
Chouar, D. (2010). Legislative Gaps in Family Law Regarding Some Marriage Issues: Legal or Judicial Justice? Journal of Legal, Administrative and Political Sciences, Issue 10, Faculty of Law and Political Science, University of Abou Bakr Belkaid, Tlemcen.
Cheikh, S. (2017). Informal Marriage as an Alternative Solution to Polygamy. Presentation delivered at the study day titled Family Law between Legal Phenomena and Social Deficiencies, Mediterranean Center for Legal Studies, University of Abou Bakr Belkaid, Tlemcen.
Theses and Dissertations:
Mehdawi, H. (2009/2010). A Critical Study of the Amendments to the Family Law Regarding Marriage and Its Effects. Master’s Thesis in Family Law, Faculty of Law and Political Science, University of Abou Bakr Belkaid, Tlemcen,
Addadi, S.E. (2015/20