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თანასწორობისა და შეჯიბრებითობის პრინციპის რეალიზაციის პრობლემატიკა გამოძიების სტადიაზე
No full textCriminal Procedure Code of Georgia tries to share the Anglo-Saxon law system model, which is based on “pure” equality of arms and adversarial principle; this can be said according to the requirements of the 9th article of the Criminal Procedure Code of Georgia regarding that at the beginning of criminal prosecution, the criminal process is being executed based on equality of arms and adversariality of the parties. The party is entitled to apply for a petition according to the rule established by Procedural Legislation, obtain via court, request, submit, and examine all the relevant evidence.
Theoretical study of equality of arms and adversariality model stipulated by Georgian criminal procedural law, regarding that at the criminal prosecution stage, equally as the prosecution (investigator, public prosecutor) – defense (the accused, lawyer) is also granted with opportunity, collect the beneficial evidence by conducting the investigative actions and for refusing the guilty (offense) the accused charged with.
Work has analyzed the problematics of the principle of equality of arms and the adversarial principle stipulated by Georgian procedural legislation, their procedural regulations, and those negative sides that hinder their complete and fair realization in investigative practice. Attention is drawn to the necessity of legislative changes in the investigator’s authority, in particular, the investigator should not represent the prosecution (party of charge), but he/she should be an independent procedural subject, being obliged to obtain both – incriminating and exculpatory evidence of prosecution (party of charge) with the same diligence, that will encourage the fair realization of equality of arms and adversarial into criminal procedural proceedings.
Keywords: equality of arms and adversariality, investigator, criminal prosecution, investigation.
Introduction
According to applicable procedural legislation, criminal prosecution bears only public character and the public prosecutor exercises it, it is only under his / her discretionary authority to commence or/and terminate the criminal prosecution, whilst he guides with public interests and #181 order of the Minister of Justice “About assertion of the general part of criminal policy guidance principles” (dated as of 8th of October, 2010), during of which he takes into consideration as how much priority has the criminal prosecution per particular crime for the state – fewer resources of the country should be spent on crimes with minor significance. Coming out of this, a public prosecutor should analyze the gravity and nature of crime and find out how corresponds the commencement of public prosecution for a particular crime to the public interest. Even though lots of gaps are observed in the mentioned order by the minister of justice, it contradicts the applicable criminal procedure code of Georgia and other legislative acts – it remains in force, unfortunately.[1]
1. Regulations Characterizing Equality of Arms and Adversariality
Adversarial proceedings become effective since the criminal prosecution’s commencement; from this stage: a) parties are entitled to apply the court for the petition under the rule established by law regarding obtaining or/and request of evidence; b) obtain the evidence independently - by themselves; c) actively participate in the examination of their or opposite party’s evidence; the accused becomes an individual collecting the counter-arguments of guilt, who process the ways of evidence collection by himself/herself. Evidence obtained by the accused possesses an equal power as one – obtained by the prosecution (party of charge).
A defense party is not needed whilst applying the investigator and public prosecutor for the performance of investigative actions or the acquisition of any type of document or other materials, for this purpose, they are entitled to directly apply to the court, thus being in comparatively equal conditions with prosecution (party of charge) in this regard. Especially should be mentioned the regulation of examination of the witness at the investigation stage, whilst both - the prosecution (party of charge) and the defense party are authorized to apply to the magistrate judge for a petition regarding the examination of the person (to be examined) as a witness.
The accused and his / her lawyer (under the bounds established by the Criminal Procedure Code and according to the determined rule) are entitled to introduce to the evidence of prosecution (party of charge) and receive copies of evidence and criminal case materials. Besides, the prosecution is entitled to be aware of evidence of the defense party. Actually, during the court hearing the parties are well acquainted with the evidence, upon which their position stands and they are granted with full opportunity to prepare in a qualified manner and decently resist the opposite party.
Entitling the defense party to an independent investigation does not imply at all that it is charged with the burden of proof to refuse the guilt. Coming out of adversariality form, an objective person may have an impression that the defense should prove its innocence, and that’s why the legislator has granted it such rights related to the collection of evidence, but it is not so. The accused is charged with the burden of proof of guilt and the defense party has no legal obligation to self-justification – notwithstanding the equality of the parties, the burden of proof regarding the admissibility of the prosecution’s evidence and inadmissibility of the defense’s evidence is laid on the accuser. Process of equality of arms and adversariality is intended for parties to be involved in the legal dispute,” – mentions Stefan Trechsel.
Equality of arms and adversariality are also guaranteed by that – 5 days before the pre-trial hearing parties are obliged to deliver to the court and each other complete information holding by that moment, which they are going to submit in the court as evidence (83rd article of Criminal Procedure Code). Besides, procedural legislation assumes the possibility to introduce the defense party to information obtained by the prosecution (party of charge) at any stage of the process, which by itself obliges the defense party (on demand) to supply the prosecution (party of charge) with that information, which it intends to submit in court as evidence; moreover – if the party violates the established rule regarding information exchange and won’t deliver the opposite party information in the complete form held by that moment – this circumstance will cause the court to recognize this material as an inadmissible evidence. There is an exception from the mentioned rule, which may be counted as the supremacy of prosecution (party of charge) – whilst the prosecution (party of charge) is entitled not to assign the defense party with information acquired as a result of operative and investigational activities, but this applies only before the pre-trial hearing. There also existed exclusive rights, which were used by the defense party; in particular, not submitting one extremely important evidence to the prosecution (party of charge) that didn’t cause the recognition of that evidence as inadmissible during the hearing of a case on the merits. In such a case, the defense party was charged with a fine and liability to reimburse the procedural expenses, which was unjustified, as it was unfair to grant the right and then a fine for its application. Indeed, this gap was further fixed, but this regulation (84th article of Criminal Procedure Code) was recognized as invalid by the legislator on the 1st of September, 2010.
Sign characterizing adversarial model is that evidence is only information and the subject, document, material, or other object consisting of this information submitted in the court, based on which the parties confirm or refuse the facts in the court, legally examine them, fulfill duties, protect their rights and lawful interests (23rd part of 3rd article of Criminal Procedure Code). Thus, only the evidence, those submitted during the court proceedings and examined by direct involvement of the parties may be considered as the basis of judgment.
Adoption of the standard of proof constitutes a positive legislation novation for the achievement of adversarial proceedings. The realization of the standard of proof depends on the information, evidence obtained by parties, and the positions supported by arguments. Evaluation of all four standards is performed on the adversariality basis via evidence submitted by parties; besides, only the court is entitled to evaluate the evidence obtained and submitted by parties and recognize them as inadmissible. Thus, only the submission of evidences is not essential for the resolution of the case, the role of the court is significant herein, which ultimately adopts the resolution regarding the admissibility and relatedness of the evidence.
Indeed, discussion of the problematics of equality of arms and adversariality during the court hearing is not a subject of our research, but it can be said with certainty that realization of the mentioned principle is more observed during the hearing of a case on the merits in court, whilst the judge is impartial and indifferent observer towards all having the place during the dispute discussion. He/she is obliged to fulfill only one thing – observe that prosecution and defense parties have equal opportunities for submission, examination of evidence, and grounding their positions,[2] and when the examination of evidence and discussion of the parties are over when the accused appear with his/her final word, the court should determine whether which party submitted more cogent and authentic evidence, as a result of which the judgment should be established – acquit the accused or find him / her guilty for crime and impose the measure of punishment.
2. Circumstances Hindering the Realization of Equality of Arms and adversariality of the Parties
As fairly is referred to in legal literature – equality of arms and adversarial of the parties in criminal proceedings is held only whilst the parties (prosecution, defense) are in equal condition. Equality implies legal and actual equality. Legal equality according to applicable legislation is formal, and actual equality is problematic on that state ground (economic hardship existing in the country is implied), on which a pure adversariality form of proceedings emerged.[3]
Realization of the principle of equality of arms and adversarial principle at the investigation stage is more hindered by incorrect and it can be said the unfair interpretation of public prosecutor’s and especially investigator’s status. Both of these subjects are considered as the prosecution (party of charge). The public prosecutor not only implements the criminal prosecution but he/she is the procedural head of the investigation. At the criminal prosecution’s commencement, his / her activity is directed to collect the evidence proving the crime, whilst an investigator and operative and investigative services as well are considered next to him/her.
Thus, as we can see, two sides stand against each other at the criminal proceeding’s commencement stage; the first side is represented by the public prosecutor and an investigator (under the duties of which is clearance of crime, investigation, implementation of criminal prosecution), which are equipped with modern criminalistic scientific-technical means for crime solution and investigation, they are entitled to apply the court with the petition, applying coercive measures (summon, arrest, imprisonment, etc.) with procedural nature towards some particular subjects and the second side is presented by accused and the lawyer, which often have no money and are unable to fund even investigation.
Besides, only the prosecution’s exclusive right is to conduct a covert investigative action, monitor the bank accounts, conduct the investigative activities with urgent necessity, and implement operative and investigative activities. The prosecution (party of charge) indeed represents the state and it should have more procedural triggers, but yet all these extremely negatively reflect on the equality of the parties.
equality of arms and adversariality proceedings are hindered most by that investigator is considered as the prosecution (party of charge), even though according to the legislation he/she is not entitled to independently resolve any of the topics, which may be considered as the part of criminal prosecution. He/she is not implementing the prosecution, nor adopts the resolution about the accusation – he/she does not apply the court regarding the application of preventive measures or coercive measures, does not commence or implement the criminal prosecution, he/she is not entitled to decide the performance of investigative activities – investigator presents the party of charge and he/she is obliged to collect only the incriminating evidence about accusation, but he/she is obliged to conduct the investigation completely and objectively in all aspects (2nd part of 37th article of Criminal Procedure Code).
A different belief is stated in the legal literature, for example: N. Mezvrishvili considers that 37th article of the Criminal Procedure Code charges the investigator to conduct the investigation completely and objectively in all aspects, which somehow implies that the investigator should obtain incriminating evidence and exculpatory evidence as well.[4]
We can not share the researcher’s mentioned opinion due to a simple reason the word “objectivity” firstly implies the investigator’s duty, to examine the evidence incriminating the accusation and exculpatory evidence and circumstances aggravating and mitigating the responsibility with the same diligence.
Objectivity is a just and moral requirement. It includes the impartiality of the investigator and excludes the subjectivism and biased approach (tendentiousness) by his / her side. Impartiality also implies that the investigator should not be interested in case outcome,[5] but according to applicable procedural code, the investigator is considered as the prosecution (party of charge) and accordingly, there’s no point in discussing his “objectivity”, as he/she must obtain only evidence incriminating the accusation. During the existence of such conditions, it seems impossible for the investigator to be the prosecution (party of charge) and even objective, and not be interested in case results at a time, moreover – even legislator has doubts about the investigator’s “objectivity”, whilst introduces the legal norm and is forced to charge the unauthorized official (head of investigative authority) to entrust the performance of investigative activities (search, seizure, etc.) by defense party satisfied by court ruling not to that investigator, which owns the current criminal case in the proceeding (or has doubts about its objectiveness), but choose another investigator; here rises a legit question: what kind of guarantee exists that other investigator would show up his / her “objectiveness”, as he/she also presents the prosecution still?
A paradox situation occurs during the existence of such conditions, whilst two different investigators perform the investigative activities on the same case: one who has the current case in the proceedings and the second – who should perform the investigative activities required by the defense party, but actually, both of them represent the prosecution (party of charge).
For these purposes, we consider it expedient to strictly separate the functions of prosecution and investigation; the function of prosecution should be removed from the investigator. He/she should not represent the prosecution (party of charge), but would be an independent, impartial official, who will be charged to conduct a complete and objective investigation in all aspects, he/she should examine the evidence incriminating the accusation and exculpatory evidence and circumstances aggravating and mitigating the responsibility with the same diligence.[6]
Our insight in this regard is expressed by D. Benidze, who considers that it is better to release the investigator from the prosecution function and charge him/her only to perform the impartial, complete, and object investigation of the case: “investigator – says an author – can not be considered as the prosecution (party of charge). Because of this, term “investigator” should be removed from 6th part of 3rd article of the Code”.[7]
Professor L. Mskhiladze completely agrees to concept regarding the investigator’s removal from the prosecution and she considers that by implementing such changes in procedural legislation, principle of equality of arms and adversarial principle in the legal proceedings will be processed in a better manner.[8]
Mdinaradze also has doubts about the “objectivity” of the investigative activities by other investigators required by defense party, which firstly represents the prosecution (party of charge) and constitutes the officer of the same agency as well; thus, he quite fairly considers illogical even proving that he/she (the investigator) will act against the own panel, so he supposes that any investigative activity required by defense party restricting the human rights guaranteed by constitution (search, seizure, etc.) should be performed directly by defense party (lawyer, accused).[9] This view by itself is not bad for ensuring the adversarial principle, as coming out of applicable procedural legislation, the realization of the principle of equality of arms and adversarial principle between the parties will be performed in a better manner, but still it will be best if the investigative activities will be held not by defense party but state official, investigator, as the state should be the only steady guarantor for lawfully performing these investigative activities, but provided it does not represent the prosecution (party of charge), but impartial and neutral character during the criminal legal proceedings.
It is impossible not to mention some particular negative aspects of the principle of equality of arms and adversarial principle, the realization of which will be extremely negatively expressed at the investigation stage, in particular: law does not oblige the prosecution (party of charge) to assign the exculpatory evidence already obtained. According to the 83rd article of the Criminal Procedure Code, the prosecution (party of charge) is obliged (on demand) to assign the defense party all the exculpatory evidence holding by that time. If we interpret the law, it will be obvious that in case of the absence of the relevant claim (requirement) by the defense party, the law does not oblige the prosecution (party of charge) to assign the defense party with exculpatory evidence, that should be considered as the gap of Code.
Exclusion of the victim from the composition of prosecution (party of defense), made adversariality more formal and it negatively influenced the adversariality process, as his / her role in the criminal procedural proceedings was weakened; this can be said coming out of fact, that his / her status merely encompasses the status of a witness.
At the plea bargain’s conclusion, the defense party is not in equal condition as the prosecution, as an agreement between them depends on the public prosecutor’s will and there exist no legislative mechanisms to control the public prosecutor’s discretionary rights.
Conclusion
Such type of regulation of the investigator’s status (we have discussed above) would undoubtedly encourage a better and real implementation of the principle of equality of arms and adversarial principle in criminal procedural proceedings. Coming out of the investigator’s authority and by its means, both parties would have been granted the opportunity to receive and realize the evidence beneficial for them.
Our opinion regarding this comes out of the dictation of that imperative norm (from “d” subparagraph of the 7th article of the Constitution of Georgia), by which criminal police and investigation belong only to special management of higher state bodies of Georgia.
Exclusion of the victim from the composition of prosecution (party of defense), made adversariality more formal and it negatively influenced the adversariality process, as his / her role in the criminal procedural proceedings was weakened; probably it would be better if the legislator would care to increase the rights of the victim.
Thus, as we were assured, legal equality of the parties does not imply their actual equality, but we still suppose that legislator should stipulate such type of regulation into criminal procedural legislation, that will put actual inequality of the parties at its minimum, that positively reflect on adversariality as well.
Bibliography
Akubardia, I. (2014). Equality of arms of the parties and the role of the judge in adversarial proceedings. In M. Lekveishvili (Ed.), 85th-anniversary compilation. Publishing House “World of Lawyers”;
Benidze, D. (2014). Transformation of adversarial principle into the Criminal Procedure Code of Georgia. Compilation of scientific works. https://www.nplg.gov.ge;
Commentary on the Criminal Procedure Code of Georgia. (2015). Edited by G. Giorgadze. Tbilisi;
Gakhokidze, J., Mamniashvili, M. (2015). Investigator in criminal proceedings. In J. Gakhokidze, M. Mamniashvili, & I. Gabisonia (Eds.), Criminal proceedings of Georgia: General part. Publishing House “World of Lawyers”;
Gakhokidze, J., Gabisonia, I., Mamniashvili, M., & Moniava, P. (2018). Investigative law, Book I. Publishing House “World of Lawyers”;
Mdinaradze, M. (2015). Some particular issues caused by legislative changes during t
პატიმრობის, როგორც აღკვეთის ღონისძიების გამოყენების დასაბუთების ინდივიდუალურობის პრობლემა სისხლის სამართლის პროცესში (საქართველოს მაგალითზე)
No full textThe European Court of Human͏ Rights has made it clear in many rulings that the rule under the European Convention on Human Rights is that jail, as a way to hold someone back, should only be used in rare situations when no less harsh choice can meet the goals of the criminal process. The law about criminal procedures in Georgia shows this idea and way. But, a look at court cases and official numbers reveals that jail is the most used way to hold someone back. This might point to an issue with how well judges explain using jail in criminal cases. The problem might be tied to gaps in the laws for criminal procedures or wrong understandings of the law by judges also to missing need for judges to clearly show why they decided on jail use.
It is important to highlight that the Constitution dedicates a separate article to the issues of detention and imprisonment. This underscores that the right to personal freedom is a constitutional right. “The Constitution protects individual freedom, which is guaranteed not only by substantive legal norms but also by procedural norms elevated to a constitutional level, emphasizing its special place within the system of fundamental rights”.[1] In this context, Georgian courts do not infrequently use blanket justifications, which undoubtedly presents a problem.
Keywords: Imprisonment, detention, constitution, European Court, European Convention.
Introduction
Detention, which holds a special place in the Criminal Procedure Code (hereinafter CPC), represents a procedural coercive measure.[2] Its proper selection is a crucial issue to ensure the protection of both society’s and the defendant’s rights and interests. Accordingly, the use of imprisonment has a “preventive-protective nature”.[3] The issue of applying imprisonment as a detention measure is of critical importance, particularly when the court must decide whether to impose it. In such cases, it is essential that both the prosecutor, in their motion, and the judge, in their ruling, provide an individual justification for the unavoidable necessity of imprisonment in each specific case.
The justification for the use of imprisonment as a detention measure is a significant topic in both criminal law theory and judicial practice. Existing statistical data on the application of imprisonment further underscores the relevance of this issue. The focus of our research is to explore the importance of providing individual justification when imposing imprisonment. Furthermore, the study and analysis of both national and international practices concerning this matter are integral to our work.
The objective of this article is to review and synthesize scientific literature, national court practices, and decisions of the European Court of Human Rights (hereinafter: European Court) while seeking potential solutions to the underlying problem.
The research methodology employed includes theoretical analysis, drawing on data from scientific literature and the practical activities of Georgian and European courts. Relevant research methods used in this study are comparative-legal, logical, and statistical analysis.
1. Constitutional and European Standards for the Use of Detention as a Measure of Restraint
The relevance and importance of the issue discussed in this article as a significant problem in Georgia is highlighted by the statistical data for the years 2022-2023 published on the official website of the Supreme Court of Georgia.[4] In 2023, the form of detention requested by the prosecution in 6,494 cases was imprisonment, and in 4,479 of these cases, the court granted the request. This means that in nearly 70% of cases, the court applied the most severe detention measure. In 2022, out of the 6,864 requests for imprisonment submitted by the prosecution, the court approved 4,830, which accounts for over 70%.
The Constitution of Georgia (hereinafter referred to as the Constitution) guarantees the protection of individual freedom.[5] “This means that it protects the freedom of each individual from any unlawful or arbitrary interference by the state”.[6] This guarantee of protection should apply when imprisonment is imposed on an individual. The mere existence of grounds for this measure should not, in itself, negate the individual’s right to freedom. “The inviolability of a person implies freedom from physical and psychological harm, that is, from both physical and mental injury”.[7] According to the Constitutional Court of Georgia, the purpose of applying a detention measure is not to prove the individual’s guilt; rather, it serves as “a means of preventing the obstruction of the proper administration of justice”.[8] By restricting the right to freedom, an individual is deprived of the ability to exercise other rights. Therefore, any interference with this right must be subject to strict control, and the standards for such interference should be exceptionally high. The Constitution, in Article 13, refers to various legal forms of interference with the right to freedom. However, the constitutional and legal guarantees for the protection of these forms of interference differ.[9]
As part of Georgian legislation, the recognition of the European Convention on Human Rights has made it legally binding at the national level.[10] The term “freedom” is interpreted similarly for the Convention as it is in Article 13 of the Constitution. The concept of “inviolability of the person” can be equated with the obligation to prohibit the arbitrary deprivation of liberty.[11]
In the case of Nikolaishvili v. Georgia, the European Court clearly outlined the elements of personal inviolability:
a) “Freedom” and “personal inviolability” form a unified basic right, in which personal inviolability relates to the circumstances of deprivation of liberty; b) “Personal inviolability” essentially means the adherence to legal and state principles during the deprivation of liberty; c) As a result, deprivation of liberty must be carried out based on pre-determined, verifiable rules and in good faith.[12]
The European evidentiary standard for the application of detention measures does not significantly differ from the standard established in Georgian legislation. When applying detention measures, there must be reasonable doubt throughout their application that the individual has committed a crime. According to the European Convention on Human Rights (hereinafter: the Convention), reasonable doubt does not imply the same standard of proof required for convictions.
As explained by the European Court, the existence of a well-founded suspicion that the detained individual has committed a crime is a necessary condition for the initial lawfulness of the deprivation of liberty. However, there must also be other “relevant” and “sufficient” circumstances that justify the individual’s continued detention.[13] The Convention explicitly states that the use of imprisonment by the court should occur only when no other measure can achieve the objectives of detention. “Under Article 5.3, the national judiciary is obliged to consider alternative measures to ensure the defendant’s appearance at trial”.[14]
CPC provides for alternative measures to imprisonment: bail, an agreement on non-leaving and appropriate conduct, personal surety, supervision by military command over the behavior of a serviceman, and imprisonment. In addition to the detention measure, supplementary measures may also be applied to the defendant.[15]
2. The Objectives and Grounds for the Use of Imprisonment as a Measure of Restraint
CPC establishes the same objectives and grounds for imprisonment as those generally defined for measures of restraint. The objectives of measures of restraint are ensuring the defendant’s appearance in court, preventing further criminal conduct by the defendant, and securing the enforcement of the judgment.[16] The legislator leaves it to the court to determine the extent of the threat presented. If the threat is of a high degree, imprisonment may be applied; otherwise, it is mandatory to impose a less severe measure.
The European Court has repeatedly stated that the use of each objective “in abstracto” for justifying a measure of restraint is inadmissible and must be based on specific factual grounds. The court has clarified that such grounds cannot be “general and abstract”. CPC outlines three specific grounds for measures of restraint: a well-founded suspicion that the defendant will flee or fail to appear in court will destroy important information related to the case, or will commit a new crime.[17] The use of any particular type of measure of restraint requires the existence of at least one of the procedural grounds listed above.
2.1. The Risk of the Defendant Committing a New Crime as a Ground for Imprisonment
Any decision in which the court cites the existence of a threat without any supporting evidence and uses imprisonment solely on this basis is inconsistent with the Constitution, the CPC, and international standards. “The prosecuting body must prove the actual existence of a specific, objectively identifiable threat”. According to the European Court, there must be specific facts indicating the risk of committing a new crime. Although these circumstances are important, each of them, taken individually, remains an insufficient basis for a well-founded suspicion that the individual may commit a new crime.[18] The argument that a violent crime is an “infallible indicator” of the likelihood of committing a new offense does not align with the approach of the European Court, according to which reference to the nature of the alleged offense is abstract and does not justify the threat of committing a new crime or interfering with justice as grounds for imprisonment.[19]
The national court, to some extent, considers that, on the one hand, the defendant and, on the other hand, the victim and other individuals, such as family members and partners, represent opposing parties. Due to this, the court may determine that if the defendant remains at liberty, they may continue engaging in criminal activity.[20]
2.2. The Risk of the Defendant Fleeing as a Ground for Imprisonment
One of the grounds for the application of a measure of restraint is a well-founded suspicion that the defendant will flee or fail to appear in court. To determine the risk of flight, it is important to consider all the circumstances of the specific case and the nature of the expected punishment. Furthermore, it must be assessed whether “the severity of the punishment could create a desire to flee, as well as the existence of objective circumstances that could lead to the defendant’s such desire being realized”.[21]
We will examine the circumstances that pose a risk of flight within the context of both national and European law, including the following:[22]
In justifying the risk of the defendant’s failure to appear in court, the personal characteristics of the defendant must be taken into account.[23] Proper attention must be given to the defendant’s voluntary appearance before law enforcement authorities, as well as to all other factual circumstances and past experiences that either support or exclude the reality of such a risk;
As a rule, the common courts of Georgia align with the European Court’s practice, which holds that the severity of the charge and the harshness of the punishment are relevant but insufficient factors, and taken alone, they do not justify the application of imprisonment. In one case, the court explained that the fact that the expected punishment is severe and that the defendant is charged with committing serious or particularly serious crimes does not, on its own, constitute a valid justification for the risk of flight;[24]
In the case, Sopin v. Russia (Sopin v. Russia, [2013], ECtHR, no. 57319/10), the European Court assessed the factors that the applicant held a passport, had relatives living permanently outside Russia, frequently traveled, and had significant financial resources, as examples of the existence of a real risk of flight;
The European Court considers a person’s connections to the state where they are detained and their international contacts as important factors. Additionally, the absence of employment and family cannot be assessed as a threat of committing a new crime;[25]
The European Court places significant emphasis on the defendant’s characteristics, including their criminal record. It also focuses on the defendant’s character and moral standing. The risk of flight should be assessed in light of all circumstances that connect the individual to the country conducting the criminal prosecution.[26] 2.3. The Risk of Destruction of Evidence as a Ground for Imprisonment
One of the grounds for applying a measure of restraint is a well-founded suspicion that the defendant will destroy evidence crucial to the case. The risk of the defendant destroying evidence and/or obstructing the collection of evidence cannot be considered relevant at every stage of the proceedings. The specific factual circumstances of the case must be taken into account.[27] It is important for the prosecution to substantiate, based on specific data, the defendant’s ability to influence the quality of the administration of justice. National courts often generally refer to the fact that a number of investigative actions still need to be carried out in the case, such as questioning witnesses and others. Justifying imprisonment based on the necessity of conducting investigative actions is not acceptable according to European Court practice. In the case Miminoshvili v. Russia (Miminoshvili v. Russia, [2011], ECtHR no. 20197/03 §86), the European Court clarified that imprisonment to ensure investigative actions is inadmissible, as conducting investigative actions typically does not require the defendant’s immediate detention.[28]
If a person is accused of committing a crime related to the destruction of evidence, document forgery, falsification of materials, and other similar actions, there is a high likelihood of evidence destruction or an attempt to destroy evidence. For example, cases of fraud and document forgery may involve such risks.[29]
The European Court did not find a violation in the case Kolevi v. Bulgaria (28.07.2005). The applicant committed fraud, which involved the creation of false identity documents and other paperwork, which he presented to the bank, thereby withdrawing a large sum of money.
The risk of evidence destruction or obstruction of evidence collection may exist if the defendant has certain connections with the participants in the proceedings. As the European Court explains, the defendant’s professional status is relevant to justifying the risk of influencing witnesses. However, at the same time, the court questions the relevance of this argument when the defendant has been dismissed from their position.[30] In cases involving allegations of official misconduct, when deciding on the imposition of measures of restraint, the prosecution should consider that the destruction of evidence could potentially be prevented by removing the defendant from their position. The court believes that, in such instances, it is important to assess the progress of the investigation and court proceedings, the defendant’s character, their behavior before and after arrest, as well as specific actions that may indicate an intent to destroy or falsify evidence or influence witnesses.
3. The Importance of Providing the Court with Information Regarding the Defendant’s Circumstances
Under the current version of the CPC of Georgia, the court is required to establish the defendant’s identity at the first appearance hearing. However, there is no strict obligation in the law for the court to determine the individual circumstances of the defendant at this stage.[31] The legislator should explicitly require the judge to determine the defendant’s personal and individual circumstances during the proceedings. While the legislator acknowledges that the judge must take into account the defendant’s personal data when deciding on the type of restrictive measure to apply, as practice and statistics show, this provision alone is insufficient.
The legislator does not obligate the court to provide a specific justification for the threats when applying imprisonment, which contradicts the approaches of the European Court of Human Rights. We believe that the obligation to individually justify the high degree of threat should be stipulated at the legislative level. Moreover, the court should individually explain why less severe measures of restraint cannot achieve the procedural objectives.[32]
The current version of the Code stipulates that when deciding on the application of a measure of restraint and its specific type, the “judge takes into account” the defendant’s personality, occupation, age, health, compensation for property damage, etc.[33]
This provision does not establish the judge’s obligation to consider these circumstances, which leads to the misinterpretation of the article in practice. We believe that the law should directly obligate the judge to take individual circumstances into account when deciding on imprisonment.
The European Court explains that the court must prioritize the consideration of alternative measures of restraint. However, under Georgian legislation, this obligation is not explicitly imposed on the court. This issue is particularly important, and if the criminal procedural law does not impose a direct obligation on the judge, the quasi-judicial practice will continue.
4. The Significance of the Defendant’s Exercise of the Right to Defense in the Individualized Justification of Imprisonment
In Georgia’s criminal procedural legislation, the principle of adversariality is upheld, meaning that only the parties involved in the case have the right to collect evidence. The court cannot collect evidence or conduct investigations. A defendant in pre-trial detention is physically unable to conduct a thorough investigation into their case. We believe that if the court decides to impose detention, the involvement of a defense attorney should become mandatory. Only if the detained defendant has a lawyer will they be able to exercise their right to defense effectively.
5. The Significance of the Prosecutor Submitting Information about the Defendant’s Circumstances to the Court
According to the CPC, when presenting a motion for the application of a measure of restraint, the prosecutor is obligated to justify the appropriateness of the requested measure and to demonstrate the impracticality of using other, less severe measures of restraint.[34] This statement does not specify individual justification, which is often interpreted by prosecutors and judges as sufficient to provide a general rationale. This leads to formulaic court decisions regarding the imposition of imprisonment. We believe that both prosecutors and courts should approach the issue of individuality with greater consideration.
In discussing this issue, we would highlight the principle of objectivity, under which the prosecution is obligated to assess the defendant’s actions honestly and objectively.[35] The activities of the prosecution should be based on the highest standards of legal ethics.[36]
Since the legislation does not obligate the prosecution to present individual circumstances of the defendant to the court, prosecutors typically do not focus on such circumstances. If the defendant does not speak about their circumstances, the court is often left in a complete informational vacuum in most cases.
6. The Issue of Appealing the Court’s Ruling on the Imposition of Imprisonment in Legislation and Practice
The criminal procedural legislation provides for a one-time opportunity to appeal the first-instance court’s ruling on imprisonment to the appellate court’s investigative chamber.[37] However, it is important to note that the law establishes a precondition for the admissibility of such an appeal, which in practice effectively means that there is no existing case law on the matter of changing imprisonment. It is crucial that the defense is allowed to genuinely challenge the decision on the imposition of imprisonment. For this to be possible, the appellate court should accept the case for review without any admissibility criteria.[38] The current provision effectively hinders the actual functioning of the appeal mechanism, as the admissibility criterion explicitly requires the presence of “new circumstances” in the case. This requirement is practically impossible to meet, as in most cases, the defense will not be able to gather information about new circumstances within 24 hours.
According to the Criminal Procedure Code, an appeal against a detention order must specify which requirements were violated during the issuance of the contested decision and how the provisions of the contested decision were incorrect. The term “material importance” set by the legislator in the article essentially determines the fate of the case and the current practice in Georgia. We believe that the parties should have the ability to challenge a detention order in any case.
Recommendations
For the court to take the defendant’s circumstances into account as fully as possible when deciding on the application of measures of restraint, we believe that legislative amendments to the Criminal Procedure Code are necessary. Specifically:
It is recommended that Article 197, paragraph 1 of the Criminal Procedure Code be amended to include the follow
CIVIL LAW CODIFICATION PROCESS IN THE REPUBLIC OF NORTH MACEDONIA AND THE REPUBLIC OF ALBANIA
Full text linkCivil Law as a branch of the private law is very important because of the regulation of the relations between two natural or legal persons in the field of property law, family law or law on obligations. The Republic of North Macedonia had a different story on its codification of civil law since it was part of the Former Yugoslavia, and its initiative started in 2009 with the process of drafting the civil code. This process continues due to the change of the Macedonian Government in 2016, which prolonged the work on the civil law codification for a couple of years. Now more than ever, the Republic of North Macedonia is ready to adopt the new Civil Code, and the last chapter is expected to be completed by the end of 2023 or the beginning of 2024. On the other side, the codification process of civil law in the Republic of Albania was long, and it emanated since its pre-state formation with the customary law and establishment of institutes, continuing with the declaration of independence and formation of the Albanian state in November 28, 1912 and the first Civil Code of 1929, the second Civil Code in the period of socialism in 1981, and the third Civil Code in the period of transition in 1994 until today. All this legal process of codification has brought development in the fields of private law, one of them being family law.
Keywords: Civil Law, Family Law, Codification, Pre-State-Formation, Private Law
Introduction
Civil Law is the most significant branch in the part of the private law, known in Latin verb as Ius Civile. The first known codes include the Code of Hammurabi (1780 BC) and the Law of the Twelve Tables, known in the Latin verb as Lex Duodecim Tabularum or simply Duodecim Tabulae (The Twelve Tables). According to Ampovska and Ilioski (2013), the Law of the Twelve Tables forms the foundation of Roman law’s whole fabric. In continuation, the most significant codification of Roman law was Coprus Juris Civilis, a collection of fundamental works in jurisprudence, issued from 592 to 534 by order of Justinian I, the Eastern Roman emperor.
During the entire codification process, the Republic of North Macedonia and the Republic of Albania had undergone different paths. The Republic of North Macedonia was part of the Former Yugoslavia, and the process of the civil law codification of Yugoslavia was a partial codification of the property law, law on obligations and law on inheritance, which resulted in the enforcement of several federal laws important for the civil law. On the other side, Albania’s civil legislation history encapsulates two stages: the stage before the formation of the Albanian state with the customary law and the stage after the formation of the Albanian state promulgated with the declaration of independence on November 28, 1912.
The methodology used in this paper consisted of secondary data analysis using different legislations, studies and books conducted by legal scholars. The paper will thoroughly analyze the countries’ development in civil law in general and family law in particular. Regarding the Republic of North Macedonia, this paper will explain the entire process of civil law codification starting from the Yugoslavia period, the first step in drafting the civil code marked in 2009, until the preparations for the adoption of a new civil code. For the Republic of Albania, this paper will majorly focus on the most important stages, starting with the pre-state formation correlated with the customary law and its impact on the process of civil codification, the adoption of the first civil code in 1929 and its treatment of family law, the adoption of several laws on family law, the first family code and the adoption of the second civil code on the period of socialism in 1981 and in the end the period of transition, the third civil code of 1994 and the division with the family code. What is important to note is the legal tradition that both countries had and the foundations that this tradition had brought for a brighter future.
1. Civil Law Codification Process in the Republic of North Macedonia
The first codification in North Macedonia was made in 1992, and it involved only one area of civil law – family law. The Family Law was codified in three acts: Law of marriage, Law on the parent–children relationship and Law on custody.[1] In 1996, a new Law on Inheritance was adopted.[2] The provisions of this law were based on the Law on Inheritance in Yugoslavia. Macedonian Law on Obligations was adopted in 2001 and was based on the Federal Law on Obligations from 1978, but with changes and adjustments that correspondent to the new social and legal relations.[3] The property law was partially codified with the adoption of the Law on Property and other Real Rights.[4] This is a general and systematic law that leaves the opportunity for some relations to be regulated with lex specialis.
In comparison with other Western Balkan countries regarding civil law codification, Serbia adopted the first civil law code in 1844, and in the present moment, there is a new process of codification of civil law that is officially started; in Montenegro – the first civil law codification was in 1888 and there is partial codification today; in Bosnia and Herzegovina there is no uniformity or a general tendency towards harmonization; and in Albania two different Civil Codes were adopted in 1928 and 1981, and the existing civil code entered into force on 1 November 1994 and consists of five parts, following the German tradition: general part, ownership and property, inheritance, obligations and contracts.[5]
The idea for drafting a Civil Code of the Republic of North Macedonia was initially presented in 2009 in the Project for Drafting the Civil Code prepared by the Ministry of Justice. In 2011, a Commission for drafting the Civil Code was promulgated with the Decision of the Government of the Republic of North Macedonia. The Commission decided that the Code would be drafted according to the pandect system rather than the institutional system. The Commission also agreed that the content of the Macedonian Civil Code will consist of 4 parts: General part; Property law; Obligations and; Successions. It was decided that Family Law wouldn’t be a part of the Civil Code, although many national legal systems include family and domestic relations within this category, though the central focus of private law always concerns the economic and productive relations between ordinary people.
In 2014, the Commission prepared draft versions of Book 3 - Obligations and Book 4 – Successions within the Civil Code of the Republic of North Macedonia. Public debates and scientific conferences were organized with experts in civil law - professors, judges, attorneys and others to discuss the draft texts, the novelties and the whole process of civil law codification in general.
In general, the Commission decided that in the process of creation of the Macedonian Civil Code, the principles of equality of the parties and the autonomy of will should be especially taken into account, and the protection of those principles must be developed on a higher level than what is the case in the existing laws. Also, it was decided that the Civil Code must provide better legal and economic security for the parties that will eventually advance the stability of civil-law relations.
The novelties in Book 3 - Obligations can be considered as small in scope, however, the new systematics, incorporation of new contracts and the introduction of different legal arrangements for some agreements would satisfy the need of the parties for better regulation of the obligatory relations, acquisition of new rights and increase the protection of the rights in practice. The third book of the Civil Code, which refers to obligations, is divided into six parts. Part one: occurrence of obligations; part two: effects of obligations; part three: termination of obligations; part four: various types of obligations; part five: change of the creditor or the debtor; part six: separate contracts.[6]
As far as Book 4 – Successions is concerned, the Commission has prepared significant reforms in the inheritance legislation that refer to the introduction and detailed regulation of the inheritance contract, regulation of the legal right on inheritance of the posthumously conceived child, introduction of the possibility for the extramarital partners to appear as legal heirs, change of the legal nature of the right to a necessary part of the inheritance that will have an obligatory legal nature, introduction of the notary will, establishment of the register of wills, provision of the exclusive competence of the notaries in the field of inheritance agreements, etc.[7]
But, after the change of the Macedonian Government in 2016, for a couple of years, there was no information about the work of the Commission. In 2022, the Minister of Justice announced that the preparation of the Code continues. Of course, we must consider that the process of adopting a civil code in one country lasts for a longer period, sometimes more than a few decades. Since independence, North Macedonia has been very close to adopting a new Civil Code. Interestingly, it was decided that another part would be regulated in the Civil Code - the Family Law, which has significant meaning for the country, considering the outdated law. Four out of five chapters of the Civil Code are ready, the last chapter is expected to be completed by the end of 2023 or the beginning of 2024. The Code will ensure greater legal certainty and more straightforward exercise of citizens’ rights. We can conclude that The Civil Code will be composed of five parts: The general part of the Civil Law, the part on property relations, the part on obligatory relations, the fourth part will be dedicated to inheritance law relations and the fifth part on family law relations. With the drafting of the Civil Code, the Republic of North Macedonia will join the large number of European countries that have civil codes, such as Germany, France, Italy, Spain, the countries of Eastern Europe - Poland, the Czech Republic, Hungary, Romania, as well as the countries in our region - Greece and Albania for example. Within the framework of the Civil Code drafting project, the members of the Commission will take into account all modern civil codes, as well as the jurisprudence of the European Court of Human Rights, the most important international documents. After preparing the draft version of the Civil Code, a comprehensive public debate will be organized in which the scientific, professional and general public will participate who should give proposals for the adopted Civil Code to be of the highest quality.[8]
2. Regulation of Family Law in the Republic of North Macedonia
Family legislation in the Republic of North Macedonia has not followed the development of relations between society and the family in the last few decades. Macedonia is one of the few countries in the world where you can be legally married and in an extramarital union simultaneously. The legal solutions do not offer an adequate framework for solving the problems that arise in practice, especially with the increasing number of divorces and extramarital unions in the last few decades. While in all European countries, the regulation of marital and family relations has been an absolute priority, in Macedonia, since 1992, apart from some cosmetic changes, there has been no reform of the family legislation. Family law has many legal gaps and ambiguities, which can be seen from the court processes and problems in the division of property in the marital and extramarital union, parental rights after divorce, child support, etc. The main question for many years was why the legislator forgot the reforms in the family law area. The dynamics of the development of relations in society and the family in the past three decades have not been followed by appropriate legal changes, and the reform in this area has completely failed. Many family law institutes do not respond to the challenges of the times in which we live. Legal solutions have become a narrow framework for solving problems. The institution of marriage, extramarital union, property-legal relations for property acquired in marriage or extramarital union, parental rights and the right of a child are just a few issues that inevitably need to undergo changes and be reformed. In recent years, there has been a dramatically increased number of divorces. The increasing number of extramarital unions and illegitimate children, as well as the appearance of more single-parent families and families in which at least one partner already has children from a previous marriage. The question is how the law is reformed and adapted to this. There are several global tendencies. Now, we have the liberalization of divorce, and the extramarital union is also being liberalized, which is largely approaching marriage in terms of its legal consequences. The position of illegitimate children is also improving. The basis of all reforms is that there is greater protection of the first and the interests of children. Today, the main part of family law is not marriage law but parental law. The focus is not on the couple but, above all, on the child’s interest. In all European legislation, most of the reforms in this sphere aim to better protect children’s rights and interests. In all other European countries, the regulation of marital and family relations has an absolute priority, but in Macedonia, unfortunately, since 1992, except for some amendments to the family law that are not essential changes, there is no reform in the family legislation. There is still a dominant concept of joint property, which is acquired during the marriage, but it is not well defined what constitutes separate and what is joint property. The marriage contract is also not legally regulated. Macedonia’s social and political system has changed, but the solutions in the sphere of property relations have remained the same as those in the previous system. The biggest and most serious shortcoming of Macedonian family law is the regulation of the rights and protection of the interests of children. The family legislation does not align with the UN Convention on the Rights of the Child. The family legislation is outdated and does not correspond at all with the Convention in several key segments. The family legislation is against the European Court of Human Rights jurisprudence.
If we do a brief analysis of the family law in Macedonia, we can notice that there are a large number of provisions with public powers of the institutions and there is nothing essential for the well-being of families. Namely, public powers should be covered by other laws, and the privacy of families should receive primacy in this law. There are no moral values for marriage and the family as an institution. Some articles were annulled by the Constitutional Court of North Macedonia and some were deleted or annulled by other laws. There are separate articles on domestic violence, around 70 articles on disputes and courts, and 50 articles about adoption, but no articles on the upbringing of children. There are also many articles on guardianship, material support, and property relations, but no single article about spiritual pleasures, psychological support and protection of children, post-divorce parenting, etc. There are no penal provisions except one article (94), and there are no bylaws on post-divorce parenting.[9] Same things are repeated several times with the same or slightly different wording, which can lead to confusion, and there is an overlap of powers where both court and the social center have the right to assign the child to custody.[10]
The fifth book of the Civil Code of North Macedonia related to family law must consider and appropriately regulate all of the abovementioned deficiencies in the existing family law legislation.
3. Reasons for Civil Law Codification in the Republic of North Macedonia
The significance of the civil law codification is indisputable and comprehensive. The legal rules integrated into the civil codes construct a framework that ensures respect for personal dignity. At the same time, these rules articulate principles and values regarding fairness and justice in social and economic relations with others. Combining these elements, a Civil Code describes a web of standards comprising an economic and social constitution for society. This framework enables individuals to interact, create reciprocal bonds, form associations, mix, and be inclusive. A Civil Code also initiates a process that leads to popular acceptance of this economic and social model. Every assertion of rights and obligations arising under the private law rules of the code implies an acceptance of its standards of justice and fairness.[11]
There will be many benefits for Macedonian society if a Civil Code is adopted.
An essential benefit is the imperative to harmonize Macedonian regulations and legal practice with European acquis communautaire, on the one hand, and the case law of the European Court of Human Rights, on the other hand, which, by its legal force, dominantly directs the Macedonian legal order. The Civil Code would help a lot in reforming the legal system of North Macedonia after its accession to the European Union.
Thus, the ultimate and essential goal of the Civil Code is to reinforce the concept of the rule of law, which is a constant shortcoming and constant remark by the European Commission on the Republic of North Macedonia[12] and the Western Balkan countries in general. Another element that needs to be taken into account is the effort within the European Union itself for a greater degree of harmonization of civil law, especially contract law and tort law. Despite numerous discussions and disagreements over whether the future of European civil law should be the foundation of European continental law, especially French or German law or Anglo-Saxon law, there are certain areas in which there are established common solutions in European secondary law, especially through European Union directives. About one hundred legal instruments of the European Union refer to civil law. When it comes to international civil law, it achieves its whole meaning through the direct legislative activity of international organizations, which is the richest activity of the European Union. The adopted standards apply directly to all Member States.
The existence of civil law codification does not deny the possibility that certain social relations and legal institutes are regulated by special laws, which, however, cannot conflict with the code, which is the lex generalis. On the other hand, a large number of regulations in one legal system opens not only the problem of their transparency but also applicability because the rules that are enacted rapidly, especially in transitional societies, are often in a collision, and when there is a conflict within the national legal system, there is regularly a problem with the legal standards of the European Court.
According to eminent lawyers, the advantages of civil law codification significantly overcome possible shortcomings, and advantages are concentrated elaboration of constitutional principles of civil law, greater accessibility and easier visibility of solutions when they are in one place than when they are scattered in different laws; removal of existing ambiguities, gaps and contradictions and preventing their occurrence, and the need for compliance; formation of general legal norms valid for all or a number of parts, sparing from repeating the same norms wherever they are relevant; better visibility of the principle which permeate a number of parts, as well as a better overview of where and in which parts there are deviations from the principles required; creating a general framework and points of reference for the specific legislation.
Also, in this important area, for a better quality of citizens’ lives and more successful functioning of their associations, it is necessary to harmonize legal solutions with ratified international conventions and international standards for the legislation in force not to be partial, incomplete and inconsistent. Therefore, the Civil code would provide all legal subjects, both citizens and legal entities, in one complete, mutually harmonized legal act, to have a corpus of all civil subjective rights, which will facilitate their application and significantly expand preventive action of civil law institutes, which are of special importance for the everyday life of citizens and legal entities.
4.History of Civil Code in the Republic of Albania
4.1. Customary Law as the Foundation for the Establishment of the Civil Code
The legal culture of the Republic of Albania in Civil Law has extended way back its 111 years as a founding state. This process touched both phases of the country, which were the phase before the creation of the state and the phase of the establishment of the Albanian state with the Declaration of Independence on November 28, 1912 as the first constitutional act of the country. The roots of today’s civil code extend to the time of the customary law, which, according to Luarasi (2007), is an unwritten law transmitted from generation to generation through oral tradition and has served to regulate legal relations over the centuries in the country. The significance of this important source is that Customary Law, as Luarasi (2007) was mentioning, was not created by any single person nor by any legislative body, but in the contrary, just like songs, dances, legendary epics, myths, and material culture, it has been created by the people itself over the centuries and it reflects their philo
წამების დეფინიცია და მნიშვნელობა სისხლის სამართლის კოდექსში
No full textTorture crimes fall within the category of serious offences, demanding an exceptionally high standard of protection. Its legal significance is profound, especially in safeguarding fundamental human rights and dignity. Human dignity is an absolutely protected, inviolable legal good protected by international legislation and the Constitution. Since the Second World War, international organizations have placed significant emphasis on establishing norms to regulate this egregious crime, given the severity and prevalence of the crime of torture, inhuman and degrading treatment is relatively high.
Studying the definition, meaning, and essence of the crime of torture has become essential for crime prevention and public awareness. It plays a decisive role in protecting legal goods. By delving into international legislation and historical contexts, we can better analyze the significance of torture in criminal law and identify crucial issues for its qualification.
This article aims to provide a comprehensive examination of the international convention’s interpretation of the crime of torture, along with the constitutional and criminal law definitions within Georgia. It will analyze the practices of the European Court of Human Rights concerning Georgian and international norms while also highlighting any gaps and issues within the discourse. Through practical analysis, the article will objectively determine and present the relevance of the research topic.
Keywords: crime of torture, definition of torture, meaning of torture
Introduction
Protection of human rights is one of the most important and priority issues for the modern world. Against international development background, great attention is paid to basic and fundamental human values. The first among them is the inviolable human right and, at the same time, the absolute legal good - the prohibition of torture. All people have the right not to be victims of violence, torture, cruel, inhumane treatment or punishment; however, at the same time, it is essential that the norm prohibiting torture is meticulously complete and includes all appropriate perpetrators and all possible aggravating circumstances.
Prohibition of torture and protection of dignity is a problematic issue in criminal law, especially the topic is relevant in the background of technological development, as it creates a greater danger of encroaching on personal goods. Also, these actions often precede more serious crimes. We are encountering new forms of torture, and new vulnerable groups are emerging. Therefore, it is necessary to analyze the existing norm in a new way and bring the content into line with the goal.
The current edition of the definition of torture is problematic and topical. It is necessary to make the disposition of the article more specific and to provide clearer explanations in judicial practice. Although the term “torture” is familiar and quite relevant to the public, its legal definition has a legal meaning separated from the terminological point of view and differs from the understanding that is established worldwide.
The definition of the article and the determination of its meaning in criminal law is crucial from the point of view of protecting torture as a concept or a legal good. To fully understand the definition, it is necessary to study and present international legislation and historical aspects to analyze its absolute character, essence, and importance in the legal system.
Based on the above, research has both theoretical and practical significance.
1. Definition of torture under international law
When studying the definition of torture, it is necessary to determine its international legal significance because the international community pays special attention to the prohibition of torture and inhumane treatment as one of the most important mechanisms for the protection of absolute rights. This is evidenced by international legislation, a number of conventions, declarations, and pacts that indicate the supreme legal protection of torture and strengthen its role in the protection of fundamental human rights and freedoms.
Torture, international conventions and pacts led to the establishment of a high standard of protection, the most brutal and widespread crimes during World War II, such as torture and cruel and humiliating treatment of people. Accordingly, creating international acts that would declare war on the most serious crime became necessary. On December 10, 1948,[1] the Universal Declaration of Human Rights was adopted. Later, on November 4, 1950, the European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted by the Council of Europe in Rome, which entered into force on September 3, 1953. Also the 1966 Pacts[2] and the 1984 Convention against Torture[3] in its 1993 Optional Two Protocols.[4]
The United Nations has been trying for many years to develop universal standards to protect everyone from torture or cruel, inhuman, degrading treatment. Conventions, declarations or resolutions adopted by the member states of the United Nations clearly state that the prohibition of torture applies without any exception and other obligations are established to ensure[5] protection against this type of violation. Accordingly, the Convention on Torture adopted by the United Nations, with its burden, content, definition and definition, is the most important law for member states.
The internationally recognized definition of torture contained in the first article of the United Nations Convention is noteworthy. In particular, term “torture” means any act by which a person is intentionally inflicted with severe pain or suffering, physical and spiritual, for purposes such as obtaining information or recognition from him or a third party, punishing him for an act he or a third party has committed, or which is suspected of committing, or intimidating or coercing him or a third party, or for any reason based on discrimination of any nature, When such pain or suffering is caused by a state official, or another person acting in an official position, either at his instigation, or with his permission, or with his tacit consent. It does not include pain or suffering that arises only as a result of legal sanctions, is essentially inseparable from them, or is a consequence of ”.[6] This definition of the Convention entirely and comprehensively lists the persons who may be the perpetrators of the crime, what is the specific purpose and how and what kind of suffering constitutes torture.
Importantly, Article 4 of the UN Convention “Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment” provides an imperative requirement that each State Party shall ensure that the act of torture is considered a crime under the criminal law of that particular State,[7] which gives member states a positive obligation to protect all citizens of their country from torture and inhumane treatment, to fulfil their obligations and to prevent all actions aimed at carrying out torture, regardless of the situation, circumstances and situation in the state.
Among the international acts regarding the prohibition of torture, the Universal Declaration of Human Rights and the practice of the European Court of Human Rights occupy an essential place. The European Court of Human Rights has repeatedly noted that Article 3 represents one of the most fundamental values of a democratic society. According to Article 3, “No one may be subjected to torture or inhuman or degrading treatment or punishment”. The definition of the mentioned article of the Convention is not so extensive and, at first glance, exhaustive, unlike the European Court of Human Rights, which in each decision clearly outlines the theoretical definitions related to the definition of Article 3 based on practice, presents the essence and meaning of Article 3, the in-depth explanations established by the court on a number of issues raised from practice It represents and creates a large base of precedents, which is necessary for the correct qualification of Article 3 and its definition. The European Court additionally demands that the punishment of torture be carried out based on relevant articles and not within the framework of inadequate, illusory and fictitious justice.[8]
2. Constitutional essence and meaning of torture
The international legal framework regarding the prohibition of torture is directly proportional to the definition of torture established by the legislation of Georgia. Reflecting the prohibition of torture at the constitutional level is an important element in ensuring that such a prohibited action does not take place within the jurisdiction of a member state.[9] The constitutional definition of torture is the basis of the definition of the article of torture established in the criminal law, within the framework of which it should be interpreted and, as a hierarchically supreme normative act, be consistent and not contradict.
Article 9 of the Georgian Constitution states that “human dignity is inviolable, and it is protected by the state”.[10] Torture, inhuman or degrading treatment, and use of inhuman or degrading punishment are not allowed. The presented constitutional norm is imperative, which makes dignity an absolute right. The mentioned article preserves the principle of inviolability of human dignity, which is the source of rights and freedoms. It is an absolute right not to be a victim of violence, torture, or other cruel, inhuman or degrading treatment or punishment, which is established by international legislation and the constitution.
The first part of Article 9 of the Constitution of Georgia talks only about the inviolability of dignity, but the 2nd part specifies the concept of dignity and distinguishes different forms of crimes of legal good protected by one absolute right. Actions prohibited by Article 9 of the Constitution and Article 3 of the European Convention can be divided into two parts: “torture” and “inhuman and degrading treatment or punishment”. Different conventions and pacts on human rights refer to the distinguishing features of these two actions, and there are also a number of decisions of the European Court of Human Rights, the main distinguishing feature of which is “quality”. It is worth noting in itself that all torture is, at the same time, inhumane and humiliating treatment, but the latter does not always reach the degree of torture. In each specific case, the degree of suffering a person has experienced is considered.[11] For human treatment to be considered a violation of the Constitution of Georgia and Article 3 of the European Convention, it is necessary to have a minimum degree of severity of “treatment”.[12] The content, nature, form, duration, physical and spiritual harm of the treatment are taken into account, and in some cases, the gender, age, and health of the victim are also taken into account.[13]
When we touch on the definition and importance of Article 9 of the Constitution of Georgia, it is necessary to mention the state’s obligations in relation to this article. The prohibition of torture and inhuman and degrading treatment and punishment will directly affect the state. This prohibition appears to us as a negative obligation. However, the state also has a positive obligation to protect people in its jurisdiction from such treatment by private individuals.[14]
3. The absolute nature of the prohibition of torture
Among human rights, absolute rights are distinguished - rights that the state cannot limit under any circumstances. Absolute right is related to human dignity.[15]
Some human rights may be limited in specific circumstances (for example, to protect public order) if the restriction is defined by law, serves the public interest, is necessary to protect the rights of other persons or society in general, and is proportional.[16] The mentioned circumstances are specifically and exhaustively defined in many existing pacts and conventions on human rights. However, as the European Court of Human Rights explained in its decision in the Tyrer v. United Kingdom,[17] the prohibition established by Article 3 of the “Convention is absolute: the possibility of an exception is not provided, and deviation from the Convention is not allowed under the second part of Article 15 of the Convention either”.[18]
In this regard, the decision of the European Court of Human Rights is important: Selmun v. France (Grand Chamber), where he once again made a clear explanation and specified the most difficult situations or the state of the country, during which it is not allowed to deviate from the 3rd floor of the European Convention on Human Rights and limit it as an exception. In particular, the decision mentions that “even in the most challenging situations, such as the fight against terrorism and organized crime, the Convention prohibits torture or inhumane or degrading treatment or punishment. Unlike the essential provisions of the Convention and the N1 and N4 Additional Protocols, Article 3 does not provide for any exception or right to deviate from what is permitted by Article 15, Clause 2, even during a public emergency that threatens the life of the nation“.[19]
4. Definition of torture in the Criminal Code of Georgia
Article 1441 of the Criminal Code of Georgia was formed due to international and constitutional definitions of torture and historical foundations. Taking into account that the crime of torture is located at the twenty-third door of the Criminal Code of Georgia, namely in the category of crimes against human rights and freedoms, it once again highlights its importance and complete compliance with the Constitution. It presents as a set of high-risk, socially dangerous actions, a crime against the absolute right of human rights and freedoms, distinguished by the highest protection from the legal point of view.
When considering the legal definition of torture - in Georgia, it is important that, despite many similarities, there is still a difference from the meaning of the mentioned article of international conventions. In particular, in the first part of Article 1441 of the Crime Code of Georgia, it is established that “torture, that is, the creation of such conditions for a person or a third party or such treatment, which by its nature, intensity or duration causes severe physical pain or mental or moral suffering and whose purpose is to receive information, evidence or recognition, intimidation or coercion of a person or punishment of a person or punishment of a person for an act committed or allegedly committed by him or a third party”.[20] Although the mentioned article of the Criminal Code broadly defines the definition of torture, the UN Convention specifies the perpetrator of the crime - namely: “is a state official or another person acting in an official position”,[21] and the first part of Article 1441 of the Criminal Code refers to the subject of the crime, generally refers to and does not make a specific reservation. Which may create a legal qualification problem. In practice, there are frequent cases when such actions are carried out by a private person, which are characteristic of the definition of torture and lead to its qualification under Article 1441 of the Criminal Code of Georgia. But in the international conventional sense, such a case cannot be considered torture,[22] which creates certain difficulties at the international level.
To study the definition of torture in-depth, it is necessary to determine the signs of crime and its characteristics. The composition of the action, the objective and subjective side, and the degree or importance of protection of the legal good create the definition of a criminal act.
The objective side of the composition of the action is the external act of the human will, which is expressed in the legal signs of the process and result of the impact on the object of criminal protection.[23] The object of the crime is a legal good that has been or may be harmed due to the crime.[24]
The legal good of Article 1441 of the Criminal Code of Georgia is human dignity, the absolute nature of which was discussed in detail above. The object of criminal protection is also human health, both from a physical and mental point of view, as well as a person’s normal (balanced) mental state. An additional object of the crime is the public relationship related to the protection of a person’s personal, family or other secrets; an additional object of torture is the equality of people according to race, nationality or other characteristics.[25]
Torture is a form of violence that can involve different types of violence. The result of these actions can be physical suffering, mental or moral, or all components together. The purpose of torture is specifically listed in the Criminal Code of Georgia. It includes receiving information, evidence or recognition, intimidating or forcing a person, or punishing a person for an act committed or allegedly committed by him or a third party, which leads to a narrow understanding of torture, which implies physical violence and suffering. inflicting in the interrogation process.
As a result of the legislation of Georgia, we can single out the main characteristics of torture, which are described in its criminal definition. For the crime of torture, it is necessary to have an intention; this crime cannot be committed without premeditation, but the methods of cruelty can be spontaneous. Also, torture is mostly characterized by systematicity in a certain period, but time is not of decisive importance for the mentioned crime. The main characteristic of torture is the fact - human suffering, which can end with various consequences for all people, including fatal ones, but it is impossible for a person not to have injuries caused by physical suffering after torture; psychological suffering does not cause physical and biological changes, and moral trauma causes a person to lose his dignity—spiritual traumas as a result of feeling inferiority complex.[26] Taking into account that every person perceives pain and suffering individually, and this is a subject of assessment, as a result of determining the method of crime and the purpose of action, the degree of cruelty, cumulative study, and the correct qualification of torture is not a problem. Especially in the conditions when, in the definition of Article 1441 of the Criminal Code of Georgia, the objective signs of the composition of the action are widely formed. It should be noted that the crime of torture can be committed both by action and by inaction, both against one specific person and against a close relative of this person. According to the norm, the action is manifested by the creation or treatment of such conditions for the victim, which causes physical, mental or moral suffering by its intensity.[27]
To study the disposition and importance of torture, it is necessary not only to be guided by the Criminal Code of Georgia but also to solve the problem in a number of issues; it is important to share the practice of the European Court of Human Rights, the diverse base of decisions of which provides an opportunity to understand each sign of crime better, to easily distinguish between the crime of torture and inhumane treatment, to reduce as much as possible Controversial issues arising from practice and others.
Conclusion
To thoroughly study and understand the definition and meaning of torture, it is necessary to analyze cumulatively both Georgia’s criminal law and international legislation and the European Court of Human Rights practice.
Since dignity is a fundamental value of a person and an absolutely protected legal good, its protection is also guaranteed by the Supreme Law of Georgia—the Constitution.
According to the Constitution, the standard of protection of this right is high, which was reflected in the criminal law of Georgia, as a result of which several articles of the Criminal Code were formed, with signs of various crimes but with common legal good, in particular, human dignity. The first part of Article 1441 of the Crime Code of Georgia refers to the crime of torture, the definition of which, the in-depth study of each of its constituent elements, is necessary to distinguish the said crime from similar crimes, such as, for example, inhumane and humiliating treatment, etc. In this case, together with the legislation of Georgia, the European judicial practice of human rights is necessary, in which the standard of how the court should be guided and how this or that case should be evaluated, on the verge of torture or inhumane and humiliating treatment.
Considering the international importance of the crime of torture, the conventional essence and meaning of its definition are pretty relevant. Their similarity and differences are interesting. As a result of studying and comparing the definition of Article 1441 of the Criminal Code of Georgia and the crime of torture established in international conventions, it became clear that despite the similarities between the definitions, the difference between them is evident, in particular, the article of torture established in the legislation of Georgia is more general, the perpetrator of the crime is not specified, unlike the United Nations and the European Convention on the Protection of Human Rights and Fundamental Freedoms. The mentioned difference may create difficulties in solving the legal issue at the international level because the crime considered torture by the legislation of Georgia cannot be qualified as torture by international practice.
Due to the danger of the crime of torture and its widespread nature and scale, it is necessary to perfect the definition of the article presented in
Navigating Cruelty: Examining ECHR Practice in Defining a Minimum Threshold for Torture facilitated by State agents
Full text linkThis article critically examines the European Court of Human Rights (ECHR) practice in defining a minimum threshold for torture. It goes in-depth with torture facilitated by State agents, as stipulated in Article 3 of the European Convention on Human Rights. While the identification of torture typically involves severe cases, the majority of instances under Article 3 pertain to degrading or inhuman treatment. Focusing on threshold cases related to freedom from degrading treatment or punishment, this article seeks to delineate the effective guarantee provided by this fundamental right within the Strasbourg organs’ judicial policy. The analysis underscores the dynamic and adaptive nature of the ECHR in interpreting and expanding the provisions of the Convention. By capitalizing on the graduated scale of degrading treatment, the Strasbourg organs have extended the protective scope of Article 3, contributing to the development of a progressive European public order. Ultimately, this exploration provides valuable insights into the judicial approach of the Strasbourg organs in defining the minimum threshold for torture perpetrated by State agents, shedding light on the evolving landscape of human rights protection in Europe.
Keywords: Torture, state agents, cruelty threshold, legal interpretation
Introduction
The purpose of this article is to Examine the concept of torture employed by the European Court of Human Rights. One of the main tenets of the human rights framework is the necessity of protecting individuals from torture and maltreatment; this is best expressed in Article 3 of the European Convention on Human Rights (ECHR). Amid the challenges associated with defining the parameters of legally permitted official acts, the European Court of Human Rights (ECtHR) has become a key arbiter, actively involved in the interpretation and definition of the minimal bar for torture enabled by state agents. This article explores the complex legal precedents surrounding Article 3, attempting to analyse the subtle aspects of the right to be free from torture and other forms of ill-treatment.
Although Article 3 forbids torture, it is not often easy to apply this article in practice because it deals with situations that fall under the category of humiliating or inhuman treatment. Understanding the effectiveness and scope of this safeguard requires an analysis of threshold circumstances pertaining to freedom from degrading treatment or punishment, which is a basic but less severe absolute right under Article 3. This article examines how the European Court of Human Rights’ jurisprudential framework has interpreted and applied the minimum threshold for torture, with a focus on cases involving State agents. This investigation highlights the Strasbourg organs’ adaptability in changing legal interpretations and social norms, demonstrating their dedication to establishing a progressive European public order. A thorough grasp of the complexities surrounding the definition of torture in the European context emerges as we set out on this voyage through the complex judicial policies of the European Convention on Human Rights. A thorough grasp of the complexities surrounding the definition of torture in the European context emerges as we set out on this voyage through the complex judicial policies of the European Convention on Human Rights. Through this analysis, the article aspires to contribute to the ongoing discourse on human rights protection within the European context, shed light on the evolving standards and challenges the ECtHR faces in addressing this critical issue, and give certain recommendations.
1. Article 3 of the European Convention: Crafting Legal Framework
The European Convention for the Protection of Human Rights and Fundamental Freedoms (The European Convention) embodies all of the rights and freedoms that people should be guaranteed. One of the cornerstone rights is the prohibition of torture and other forms of Ill-treatment, enshrined in Article 3 of the European Convention. “No one shall be subjected to torture or inhuman and degrading treatment or punishment”, states Article 3.[1]
Article 3 must be read with Article 15 of the European Convention. The prohibition of torture has achieved the status of jus cogens or a peremptory norm in international law (Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture [GC], § 59, 2022) The prohibition is absolute. No derogation from it is permissible even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organized crime or the influx of migrants and asylum-seekers, irrespective of the conduct of the person concerned.[2] Therefore, European Convention imposes an absolute prohibition on torture, inhuman and degrading treatment or punishment.
Article 3 of the Convention imposes substantive positive obligations on the State, which include the following: (1) establishing a legislative and regulatory framework of protection; and (2), under specific and well-defined circumstances, taking operational measures to safeguard individuals against the risk of treatment that violates that provision.[3] Creating a thorough legal and regulatory framework is the affirmative requirement outlined in Article 3 of the European Convention on Human Rights. This structure is essential for giving people strong protection and preserving their mental and physical well-being. This obligation is especially important when it comes to public services that are tasked with protecting children’s health and welfare, especially when those youngsters are extremely vulnerable and under the sole custody of authorities. This affirmative requirement might, in some cases, require the installation of extra precautions and safeguards. The necessity of this duty has been emphasized by the European Court of Human Rights (ECtHR), particularly in situations involving child sexual abuse in which the offender is in a position of power over the victim. The European Court of Human Rights (ECtHR) has highlighted the significance of adequate detection and reporting systems in successfully implementing pertinent criminal laws in delicate situations, as demonstrated by the case of X and Others v. Bulgaria [GC], 2021, § 180. In a similar vein, the European Court of Human Rights has ruled that, in the case of domestic abuse, domestic authorities have a positive obligation to take proactive steps to safeguard victims under the criminal law. Among these steps are the criminalization of domestic abuse and the implementation of fair, reasonable, and deterrent penalties, as stated in Volodina v. Russia, 2019, section 78.
Additionally, regarding safeguards, the European Court of Human Rights requires national legal systems to provide an extensive array of legal and practical remedies. As explained in Tunikova and Others v. Russia, 2021, § 95, this range of choices guarantees that authorities have a variety of adequate and proportionate measures aligned with the assessed level of risk in each particular case. The jurisprudence of the ECtHR highlights the proactive role of states in crafting and enforcing legal frameworks to fulfil their positive obligations under Article 3, particularly in contexts where vulnerable individuals are at heightened risk.[4]
2. Interpreting the Minimum Conditions for Torture under Article 3 of the European Convention on Human Rights
To determine whether a particular form of ill-treatment should be qualified as torture, the Court will have regard to the distinction embodied in Article 3 between this notion and that of inhuman or degrading treatment. It was the intention that the Convention should, using this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. The Convention’s aims and purposes, intended to serve as a mechanism for safeguarding individual human rights, necessitate interpreting and applying its provisions that ensure practical and meaningful protection. This imperative should guide the Court’s approach to understanding Article 3, emphasizing the importance of rendering its safeguards both realistic and effective.[5] The same distinction is drawn in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment “UNCAT”. [6] In addition to the severity of the treatment, there is a purposive element, as recognised in the UNCAT, which defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information or a confession, inflicting punishment or intimidation.[7] With regard to the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions, acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. The Court has taken the view that an increasingly high standard is required to protect human rights and fundamental liberties. It inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.[8] In this respect, the Court has emphasized that the prohibition of torture has achieved the status of jus cogens or a peremptory norm in international law. Various acts, behaviours, or occurrences can be perceived as torture under specific circumstances, while they may not qualify as torture in different situations. It is crucial to underscore that, in legal contexts, torture is often associated with cruel, inhuman, and degrading treatment or punishment or ill-treatment. “Torture is not an act in itself, or specific type of acts, but it is the legal qualification of an event or behaviour, based on the comprehensive assessment of this event or behaviour”. This classification is determined through a comprehensive assessment of the specific circumstances surrounding the event or behaviour. The distinction between these various classifications—torture, cruel, inhuman, and degrading treatment or punishment—depends on the unique circumstances of each case and is not always straightforward. It becomes evident that the qualification of torture may be readily assigned in certain instances due to the specific intensity or nature of certain acts. However, in other cases, factors such as the victim’s vulnerability (age, gender, status, etc.), the surrounding environment, and the cumulative impact of various elements must be considered. These factors collectively contribute to determining whether a particular case rises to the level of torture or falls short of this ultimate threshold, warranting classification as cruel, inhuman, or degrading treatment or punishment.[9]
Before the Court can decide that a given act or series of actions constitute torture, a number of factors must be proven. These factors include the “purpose” of the acts, the extent of “state responsibility”, and the status of the offender or perpetrators. However, the threshold questions of first the minimum conditions to fall under Article 3 and second the degree of injury required to establish torture are preliminary to each of these factors. These prerequisites are not only necessary for a finding of torture, but they are also fundamental concerns that shed light on how the Court interprets questions of harm and human rights, such as its disproportionate emphasis on bodily or psychological harm and its expansion of Convention jurisprudence beyond the basic focus on state-centre, public-oriented forms of abuse. Because these threshold questions deal with contentious issues of rape comparison and proper tactics for apprehending offenders, they also provide significant challenges for feminist researchers and activists. Lastly, and perhaps most obviously, these threshold concerns establish the admissibility of a claim and the extent of any damages awarded to an applicant.[10]
The European Convention on Human Rights (ECHR) Article 3 has been applied in various contexts, the most common of which is the treatment of people who are deprived of their freedom. This chapter explores the complex situations in which Article 3 is used, highlighting how often it occurs in the context of detained people and calling on law enforcement and other custodial authorities to exercise caution. It is especially important for those in charge of detainees—police, jail guards, immigration agents, and patients in secure psychiatric units—to determine the likelihood of maltreatment as soon as possible, especially for vulnerable populations. According to Article 3, “torture” is defined as intentional inhuman treatment that results in extreme and painful suffering, frequently for coercive or information-gathering reasons. The degree of suffering sets torture apart from inhuman treatment, which necessitates a minimum degree of severity resulting in actual physical harm or severe mental distress, regardless of deliberate action. The chapter also examines how these terms’ thresholds are changing, emphasizing how dynamic the standards are.
Distinguishing “degrading treatment” from bodily and emotional anguish entails debasement and humiliation. It could be brought on by solitary imprisonment, strip searches, or other forms of detention. An Article 3 breach is more likely when there is evidence of maltreatment coupled with discrimination, especially on ethnic grounds. The chapter also discusses how Article 3 is used in deportation and extradition proceedings, highlighting that sending people to nations where they may violate Article 3 is a breach on the part of the deporting State.
Additionally, the chapter highlights positive obligations of Article 3, stating that dealing with vulnerable populations increases the State’s obligation to avoid mistreatment. Similar to the right to life (Article 2), where a plausible violation of Article 3 requires an independent, efficient, and timely investigation, the procedural duty to investigate is emphasized. This procedural responsibility emphasizes several important elements, including medical examinations, proper record-keeping, and collaboration with investigations.[11]
3. Challenges in Determining ‘Degrading Treatment’ under the European Convention on Human Rights
Another difficulty with this strategy is figuring out where exactly “threshold” is located under Article 3. In particular, it can be challenging to determine whether some instances of maltreatment are sufficiently minor to be considered “degrading”. This raises the related problem of determining the degree of seriousness for each of the three components listed in Article 3. The argument is about determining, unless there are extremely minor cases, at what point the inflicting of physical or mental pain is likely to be considered at least degrading treatment. The case of Costello-Roberts v UK serves as an example. In this case, the Court considered whether the 7-year-old had received a minor reprimand with a slipper from the headmaster in a private school. Acts not involving the intentional infliction of physical or mental suffering may also be considered degrading, yet these instances necessitate evaluation on distinct grounds. In a case where a detainee was handcuffed, like Raninen v. Finland, the Court established a standard, saying that the important thing to look at is whether the treatment in question shows disrespect or contempt for the person and whether or not it intends to humiliate rather than just accomplish a legal goal. This nuanced assessment emphasises how difficult it is to determine when behaviour falls outside of what constitutes degrading treatment under Article 3, especially when it does not involve intentional physical or mental injury.[12] At first, the Convention appeared to draw a clear difference, reserving the term “torture” for intentional acts of inhuman treatment that result in extreme and terrible suffering. However, the Court’s position has changed in the last few months. The Court stated in Selmouni v. France (1999) that some actions that were previously categorised as “inhuman and degrading” rather than “torture” might be reclassified in the future. The Court underlined that a more accommodating approach to evaluating violations of the core principles of democratic societies is necessary, given the strict standards necessary to safeguard human rights and fundamental liberties. Selmouni v. France is a significant case because it shows that the Court is prepared to review and maybe amend earlier interpretations of the Convention. This constitutes a noteworthy addition to the developing body of legal knowledge about torture. That being said, it can be wise to avoid being unduly fixated on the particular name associated with a given type of maltreatment. Selmouni has wider ramifications, implying a greater universal importance that merits careful thought.[13]
The European Convention on Human Rights, which places a strong emphasis on preventing torture, serves as a cornerstone for protecting people from violations of their human rights. This chapter explores the potential extraterritorial duties that nations may be subject to under the ECHR when deciding whether to admit evidence that was obtained by torture. The main focus is on a hypothetical situation in which the European Convention draws a clear link between torture and the use of that evidence in Court. The European Convention has continuously demanded that states look into reports of torture, thereby reiterating the outright ban on this horrible practice. This chapter considers applying a similar obligation to situations when the evidence has been corrupted by torture. Making comparisons with earlier rulings such as Soering, where the United Kingdom was mandated to assess foreign conditions before extradition, it is conceivable that the ECHR might advocate for thorough investigations into torture-related claims linked to evidentiary proceedings. An important topic covered in this chapter is the possibility of putting states—especially the UK—under the burden of proof to prove that evidence presented in Court was voluntary. This is consistent with long-standing procedures seen in both domestic and international legal systems, giving weight to the reliability and impartiality of the evidence, particularly in situations involving allegations of coercion or torture.
This chapter explores the potential obstacles that nations may face while acknowledging the necessity of looking into evidence that was caused by torture. It considers how the ECHR might examine and possibly contest exceptions claimed by governments, particularly when faced with solid arguments like the grave threat of terrorism. The debate assesses whether security considerations can justifiably take precedence over the need to inspect the procedures thoroughly used to obtain the evidence.
In navigating the intricate landscape of extraterritorial obligations under the ECHR concerning evidence obtained through torture, this chapter provides comprehensive insights. By drawing on legal precedents and envisioning hypothetical scenarios, it aims to illuminate potential developments and challenges in ensuring compliance with human rights standards, particularly in the delicate realm of using evidence tainted by torture in legal proceedings.
4. Reassessing Severity: Article 3 Jurisprudential Context-Sensitive Method
The claim that maltreatment must reach a minimum degree of severity is the basis of the European Court of Human Rights (ECtHR) requirements under Article 3. This criterion highlights the relative character of evaluation, considering elements like time, bodily or mental impacts, and the victim’s demographics. It has been reinforced since the historic Ireland v. UK decision.
According to the ‘all the circumstances’ formula, the victim’s vulnerability was examined along with the type, context, and delivery of the treatment. The Court has made a distinction between “degrading” treatment—which degrades or humiliates, so undermining human dignity—and “inhuman” treatment, which results in physical pain or severe suffering.
Although ‘degrading’ treatment is frequently argued to be the least severe under Article 3, the Court’s approach offers a more nuanced view. The concept of the minimum degree of severity’ establishes boundaries for humiliating treatment, meaning that a specific threshold of humiliation or debasement must be reached.
It is critical to recognise the qualitative differences between inhumane and degrading treatment. ‘Degrading’ mainly refers to being subjected to terror, agony, or humiliation, whereas ‘inhuman’ refers to causing pain or suffering. But these components are related, and in some cases, a combination is involved.
In evaluating severity, the Court in the Bouyid v. Belgium decision placed more emphasis on the type of treatment than the extent of harm. In this sense, severity refers to the wrong of inhuman and degrading treatment that goes beyond quantifiable effects. The misuse of authority and the nature of the treatment indicate how serious the breach is.
Bouyid emphasises that the character of the treatment is inextricably tied to its severity, which is not only determined by the injury caused. The minimum level of severity is a complex, context-specific criterion that considers vulnerability and power relationships while determining the appropriate course of action. It functions as an objective criterion, with the Court evaluating severity individually in relation to the particular circumstances.
In conclusion, the Court’s approach to severity in Article 3
ბავშვის მოსმენის უფლება სამოქალაქო სამართალწარმოებისას
No full textCaring for the welfare of children is a continuous and ongoing process, the foundation of which is a legally sound system. Child-friendly proceedings are designed to ensure the meaningful involvement of children in the decision-making process, which, of course, is manifested in the proper realization of the child’s right to be heard. A child’s right to be heard in civil proceedings is a crucial aspect of child-centred justice, recognizing children as active participants in decision-making. The article studies the evolution of the child’s right to be heard in the international legal system, thus examining international conventions such as the United Nations Convention on the Rights of the Child and regional documents that recognize the children’s right to participate in decision-making processes related to them. The article analyzes the legal framework applicable in different jurisdictions, including challenges and best practices in exercising the right. In addition, the article discusses the importance of the child’s participation in civil proceedings, emphasizing its impact on the child’s development and well-being and, on the other hand, on the quality of court decisions. The article discusses the relationship between the child’s right to be heard and the standard of protection of the best interests. It emphasizes the need for a multidisciplinary approach when dealing with cases related to children. The article reviews the practical challenges and opportunities related to this issue and circumstances limiting the right, such as age and maturity. The legal ways necessary for better realization of the child’s right to be heard are proposed in the form of recommendations in the article.
Keywords: Best interests, Convention, Committee on the Rights of the Child
Introduction
The relevance of ensuring the child’s right to be heard in civil proceedings is deeply rooted in its legal importance. The child’s right to be heard strongly guarantees fair decision-making. In this regard, the issue of whether the child’s right to be heard is ensured during civil proceedings is highly relevant and significant. The Code emphasizes the urgency of the issue, adopted in 2019, particularly Article 8, which defines the necessity of expressing the child’s opinion and taking it into account. However, the question is whether the abovementioned Code ensureდ the child’s right to be heard fully. In this regard, the issue needs to be evaluated and relevant recommendations developed.
Violating a child’s right to be heard or inadequate provision can lead to unfair decisions regarding the child. The article aims to study the legal nature of the child’s right to be heard, identify the circumstances that may limit or hinder the full exercise of this right, present the obstacles in the national legislation and make the necessary recommendations.
The article’s novelty lies in its focus on legislative recommendations derived from research on ensuring the child’s right to be heard in civil proceedings.
Several scientific research methods were employed in the research, including grammatical and teleological interpretation of legal norms, to identify legal gaps and develop recommendations. Comparative legal research and analysis of court decisions are presented to determine the limiting circumstances of the child’s right to be heard. The main issues of the paper are also processed using analysis and synthesis methods.
In the first chapter, the focus is on providing a general review of the legitimate purpose and preconditions of the child’s right to be heard, as well as its relation to the child’s best interests. In the second chapter, the focus shifts towards the circumstances limiting the child’s right to be heard, while the third chapter discusses national legislation and practice, as well as existing gaps and recommendations.
1.The child’s right to be heard and its relation to the standard of protection of the best interests
The evolution of the child’s right to be heard in international law represents a significant change in recognizing children as autonomous individuals with distinct rights and interests. One of the fundamental documents of this evolution is the Declaration of the Rights of the Child, adopted by the General Assembly in 1959.[1] Although the Declaration recognized children’s entitlement to special care and assistance, it did not explicitly mention the right to be heard. Nevertheless, the Declaration laid the groundwork for future developments in children’s rights by emphasizing the importance of considering the needs and interests of children. The next important step in the evolution of the child’s right to be heard was the adoption of the Convention on the Rights of the Child by the United Nations in 1989.[2] The Convention on the Rights of the Child (CRC) is the most universally ratified human rights treaty in history, which treats the child as the subject entitled to a comprehensive range of rights, rather than passive recipients of care, love and protection.
The Convention on the Rights of the Child defines four general principles, one of which is the right to be heard. Article 12 of the Convention on the Rights of the Child (CRC)[3] not only explicitly establishes the right of children to be heard but also emphasizes the fundamental importance of this right in the interpretation and implementation of all other rights recognized in the Convention.[4]
Since the Convention on the Rights of the Child is based on the concept of child welfare, in its actual definition and identification, child participation is required.[5] Thus, the Convention on the Rights of the Child (CRC) indeed recognizes the critical importance of children’s participation in decision-making processes that affect them directly.
According to the first part of Article 12 of the Convention on the Rights of the Child: “States Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child“.[6] Article 12 of the Convention on the Rights of the Child (CRC) places a clear responsibility on states to ensure that children have the opportunity to express their views on all matters affecting them freely. For states to realize the abovementioned right accurately and without any distorted interpretation, it is necessary to clarify what is meant by “having the ability to form one’s own opinion “. The case of the European Court of Human Rights clarifies in the case N.TS v. Georgia,[7] that the mentioned phrase does not define a restriction but the obligation of the state to evaluate the child’s ability within the scope of the possibility. The state party must assume in each particular case that the child can express his/her views, the child is not obliged to prove his/her capacity. The child has the right to freely express his/her views without any pressure, and his/her desire to exercise the right to be heard is noteworthy.
To ensure that the child is heard, in accordance with the first part of Article 2 of the Convention, it is necessary that the issue concerns the child himself/herself, and Article 12 of the Convention does not explicitly define the right to express opinion in general. Instead, it specifically focuses on the right of the child to freely express their views on all matters affecting them. In addition to the above, the disposition of the same article emphasizes the importance of considering the views of the child in accordance with their age and maturity.
Unlike the first part, the second part of Article 12 of the Convention is procedural and imposes the obligation to hear the child on the court and administrative bodies directly, through a representative or a relevant body. However, the Convention on the Rights of the Child (CRC) does not provide specific guidance on the form or procedures for ensuring children’s participation in judicial proceedings.
Later, Article 12 of the Convention was interpreted by the UN Committee on the Rights of the Child, which supervises the implementation of the Convention and requires States Parties to ensure that children are allowed to express their views on all matters affecting them, including in judicial and administrative proceedings. The Committee explains[8] that the implementation of Article 12 of the Convention requires five steps to be taken, namely:
Informing the Child of Their Rights—Those responsible for hearing the child should ensure that the child is informed of their right to express their views on all matters affecting them. In addition, the child must receive information about the hearing through a representative.
Hearing—The environment in which the child exercises the right to be heard should be encouraging. The child needs to make sure that the adult responsible for listening to him/her is ready to listen to him/her and take seriously what he/she decides to say. The person who listens to the child may be involved in issues related to the child (e.g. teachers, social workers or caregivers), may also be a decision-maker in the institution (e.g. principal, administrator or judge), or a specialist (e.g. psychologist, expert, doctor).
Assessment of the child’s ability—It is necessary to assess the child’s ability and the extent to which he/she can form his/her own opinions reasonably and independently.
Giving proper importance to the child’s opinion—The decision maker should give due importance to the child’s views.
Appeals—The legislation shall ensure the rights and procedures for appeals when a child’s right to be heard and have their views given due weight is neglected or violated. Based on the abovementioned, five basic procedures must be followed at the stage of hearing the child in the proceedings, which the legislation must ensure; otherwise, it will lead to a diversity of practice and errors.
The child’s right to be heard is a crucial tool for improving justice. When children are involved in the proceedings, they contribute to the quality of the process and increase the likelihood of fair outcomes.
When realizing the child’s right to be heard, it is important to clarify that this is a child’s right and not a duty. A child should be heard when he/she can form his/her views. However, this should not be judged only by age, it is also necessary to inform the child about his/her rights.[9] This is the foundation and general framework for realizing the child’s right to be heard in the civil process especially, when the issue concerns sensitive topics related to the child, such as: determining the place of residence, relationship with parents and others.
The most important factor in realizing the child’s right to be heard is considering the child’s opinion. However, this right is not absolute and may be limited. Age and maturity are significant factors that may limit a child’s right to be heard in certain cases. However, assessing the extent to which the child’s rights can be limited in relation to other rights provided by the Convention is especially important. For example, when giving priority to the best interests of the child.
According to the first paragraph of Article 3 of the UN Convention on the Rights of the Child, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration”.[10] The principle of the primacy of the best interests of the child and the right of children to be heard are two fundamental pillars of the Convention on the Rights of the Child (CRC) which are used in the interpretation of all other provisions.[11] Based on the abovementioned, understanding the relationship between the child’s right to be heard and the standard of protection of the best interests is crucial for ensuring that neither right is unreasonably limited at the expense of the other.
Regarding the best interests of the child, the Court of Human Rights explains that the assessment of the best interests of a particular child should be carried out individually,[12] when a) the child’s opinions should be given due importance, b) all other rights of the child must be taken into account, including the right to dignity, freedom and equal treatment, c) a multidisciplinary approach should be used by all agencies that will consider all interests, including the child’s psychological and physical well-being, legal, social and economic interests. Courts should employ a multidisciplinary approach to determine the child’s best interests when considering and deciding cases involving children“.[13] Based on the abovementioned, listening and considering the child’s opinion is a criterion for determining the child’s best interests. Therefore, the child must participate in the determination and identification of the best interests of the child.[14] That is why it is clear that Articles 12th and 3rd of the Convention do not contradict each other instead, Article 3rd reinforces Article 12th promotes the essential role of children in the decision-making process.[15] Determining the best interests of the child without listening to him/her and taking his/her opinion into account is unreasonable, the child knows what he/she wants and what represents his/her well-being. As for taking into account the opinion, this is a matter of further assessment; however, when making a decision, the child’s opinion should not be taken into account only if the child’s ability to fully express his/her views, assessed as necessary, does not meet the criteria established by Article 3 of the Convention, in this regard, it cannot be used to determine the standard of best interests. In this case, disregarding the child’s opinion conflicts with the right to the priority of the best interests only because the requirements of Article 12 of the Convention are not met. Therefore, the conclusion that the child’s right to be heard conflicts with the right to prioritize the best interests is meaningless.
2. Age and Maturity as a Limitation of the Right
Article 12 of the Convention on the Rights of the Child (CRC) does not impose an age limit on the child’s right to express their views; this is, of course, contrary to the imposition by States Parties of age limits by law, which would limit the child’s right to be heard in all matters concerning him. In this regard, the UN Committee on the Rights of the Child has emphasized that the child’s right to be heard extends to all children, irrespective of age. This recognition acknowledges that even young children can form opinions, express preferences, and contribute to decision-making processes in meaningful ways.[16] Accordingly, Article 12 of the Convention requires recognising and respecting non-verbal forms, including play, body language, drawing, etc., through which very young children demonstrate choices and desires.
The phrase mentioned in Article 12 of the Conventions, “Giving appropriate weight in accordance with the age and maturity of the child”, in Article 12 of the Convention on the Rights of the Child (CRC) does not imply the establishment of age restrictions. For example, in Bulgaria and Romania, children are generally heard from the age of ten; in Spain, the legal age of consent for children to express their views on certain matters is typically fourteen, and in Finland, children are normally heard from the age of fifteen in legal or administrative proceedings.[17] In France, the law sets age limits for specific proceedings; for example, in family law proceedings, a child can be heard from the age of seven.[18] Various age-related restrictions at the level of national legislation are artificial barriers to the exercise of the right. Therefore, they should not be considered at the legislative or practical level.
It is interesting to what extent it is possible to limit the right to be heard to very young children. In very young children who are not yet able to form an opinion or otherwise express their wishes,[19] it is necessary for the courts to rely on the expert’s objective assessment,[20] to determine whether a child can be heard, taking into account the age and maturity of young children, even with the help of a child psychologist/specialist if necessary.[21] The fact that the child is very young or in a vulnerable situation (eg, with disabilities, belonging to a minority group, being a migrant, etc.) does not deprive him/her of the right to express his/her views and does not reduce the importance that should be given to the views of the child in determining his/her best interests.[22] According to the explanatory report of the Convention, attempts to establish a minimum age during the process of developing the text of the Convention ended in failure, since “all the numbers had an artificial, one might say, arbitrary character. It was considered best to entrust the application of this provision in life to the competence of the relevant bodies”.[23] Entrusting the competence of relevant bodies, obviously, does not mean the possibility of setting a minimum age at the legislative level, it is related to the practical implementation of the right to be heard of the child, during which the competent persons make a decision to listen to the child and take into account his/her opinion.
As for maturity, it refers to the capacity of a child to understand and evaluate specific outcomes. Maturity is quite difficult to define in the context of Article 12 of the Convention; it is the child’s capacity to express reasonable and independent views on various issues. The greater the impact of the result on the child’s life, the more relevant the appropriate assessment of the child’s maturity. In contrast to the establishment of age restrictions, the legislation of various countries hardly defines what constitutes a child’s maturity. It is mainly a matter of assessment in the abovementioned decision-making process. For example, In Croatia and France, the determination and evaluation of a child’s level of maturity and best interests are often conducted on a case-by-case basis.[24] Polish civil law explains that children can be heard in legal proceedings if their maturity, development, and health allow them to participate, but the law does not define “maturity”.[25] Thus, age and maturity-based restrictions should indeed be subject to individual assessment to ensure that children’s rights are upheld equally,[26] “Information, experience, environment, social and cultural expectations and level of support determine the juvenile’s ability to form his/her own opinion. That is why it is evaluated individually”.[27] Such an assessment ensures that children are involved in decision-making, with reasonable assistance and support if necessary.
Thus, considering age and maturity as limiting circumstances of the child’s right to be heard requires an objective assessment process. Otherwise, no one can limit the child from expressing his/her opinion and views. Here, it should be taken into account that age taken separately, even very young age, cannot be considered as an unconditional limiting circumstance; the required maturity may not be suitable for the full expression of the child’s opinion; in this regard, any legal restrictions do not serve the requirements stipulated by the Convention. Moreover, they are contrary to the objectives of Article 12 of the Convention.
3. Incorporation of the Child\u27s Right to be Heard in National Legislation
The Code on the Rights of the Child was adopted in 2019, according to which the standards of recognition, realization and protection of children’s rights were determined by national legislation, which applies everywhere when discussing issues related to children. The child’s right to be heard is defined by Article 8 of the Code, according to which: 1. The child shall have the right to have his/her opinion heard when resolving any matter related to or affecting any of his/her rights and to have his/her opinion taken into account in accordance with the child’s best interests; 2. The child shall have the right always to be heard when the child is willing to express his/her opinion, either directly or by providing due support depending on individual needs, and in the form and by any means of communication desirable and permissible for the child; 3. The restriction of the right provided for by paragraph 1 of this article on the grounds of age, disability or other circumstances shall be inadmissible; 4. The process of interviewing the child and listening to his/her opinion should be informative, voluntary, respectful and accountable to the child, adapted to the child, inclusive, safe, conducted by specialists properly trained in child issues”.[28] It should be noted that according to the Georgian legislation, the child’s right to be heard provides for the hearing of the child, taking into account the child’s wishes, when discussing any issue related to him/her, without any restrictions based on age or other circumstances, in an informative, voluntary and child-friendly environment. The Court of Cassation, in one of its important decisions[29] which refers to the recognition and enforcement of a decision of a foreign country in the territory of Georgia, draws attention to the fact that according to the requirements of a special law, a decision recognized in the territory of Georgia is against the public order of Georgia. According to the decision of the court of a foreign country, it is not established whether a psychologist was involved in the consideration of the case or even whether the psychologist heard the minor. The Court of Cassation emphatically
DOES THE LEGAL FRAMEWORK GOVERNING EMERGING INSTITUTIONS IN ALGERIA DIFFER FROM THAT OF TRADITIONAL PROJECTS?
Full text linkEmerging institutions have garnered significant worldwide attention due to their unique characteristics and pivotal roles in fostering economic development. These institutions represent innovative economic models that have gained prominence in numerous countries, aiming to nurture emerging ventures and empower innovators. Like many nations, Algeria has adopted an alternative economic approach to achieve sustainable development and elevate the national economy. This approach prioritizes fostering creativity and innovation, enabling economic diversification, and encouraging the establishing of emerging institutions. Algeria aims to drive the desired development and investment momentum by expanding business opportunities within a sound economic environment. This strategy is a viable alternative to wealth creation and economic expansion beyond the hydrocarbon sector and traditional economic rents. Hence, Algeria issued an arsenal of legal texts to encourage these institutions and open the door for those with innovative ideas to implement their ideas on the ground. Therefore, supporting emerging enterprises has become a priority for Algerian economic decision-makers to contribute to advancing development and enhancing local production.
Keywords: Innovation, startups, economics, finance, support
Introduction
The interest of decision-makers has recently emerged in emerging institutions and business incubators, as they are the main axis for advancing development in Algeria and moving away from the oil-rentier economy that has been relied upon for decades. Perhaps this interest stems from the Algerian state’s conviction that there is no escape from creating a new economic model based on Technology and knowledge and giving young people an opportunity to embody their ideas on the ground, realizing that emerging institutions are the engine of tomorrow’s economy.
Hence, the Algerian state attached great importance to emerging institutions, as it allocated to the latter an entire ministry called the Ministry of Knowledge Economy and Emerging and Small Enterprises. It also harnessed all circumstances and wrote laws that would support institutions and open the way for young people to enter the world of investment through the new investment law after... Several amendments touched on its contents, including facilities that would stimulate those wishing to establish emerging, small and medium enterprises.
Several regulatory decrees were also published in 2020 related to emerging institutions, to be the regulatory framework that sets out the methods, conditions, and procedures followed regarding them, as well as everything that benefits the level of the tool of these institutions, to achieve the economic goals set by the state.
Given the importance of the topic, we find ourselves faced with several questions, including:
What is the concept of emerging enterprises? What is the legal framework for emerging enterprises?
To answer these questions, which were one of the motivations for choosing this topic, we addressed the nature of emerging institutions in Algerian law (first axis) and the legal texts regulating emerging institutions (second axis).
1.The nature of the emerging institutions in Algerian law
The term “emerging enterprises” has often been used in academic circles and the world of finance and business without agreeing on a single definition due to its connection to law, economics, and business activities. Hence, the definitions have varied.
1.1. The jurisprudential and legal definition of emerging institutions
Before we discuss the definition of emerging institutions under Algerian legislation, we must address the definition of emerging institutions in general
1.1.1. General definition of emerging enterprises
In the English lexicon, the term “startup” refers to a small project that has just begun. The word itself originates from a combination of “start”, indicating the initiation of a project, and “up”, signifying upward growth and expansion. This term gained widespread usage immediately following World War II, coinciding with the emergence of venture capital firms (venture capital). Today, the term is recognized by dictionaries like Le Robert in French, defining startups as young, innovative companies operating in the sector of modern technologies (la Rousse).
Further elaborating on the concept, Paul Graham, founder of the renowned startup accelerator Y Combinator, defines the startup in his essay on growth as “a company designed to grow fast”. Its business is to create and market new technology.
Some define a startup organization as: “an entity designed to create a new product or service under conditions of extreme uncertainty”.[1]
It has also been defined as: “A small, newly established project that aims to innovate and develop a new product or service in any sector. This type of enterprise is characterized by high degrees of risk”.[2]
Through the previous definitions, it can be said that emerging institutions are newly established institutions that started from the idea of a project, seeking to produce goods and services in the market, and have the potential for very rapid growth and may be active in any sector, but mostly in the field of modern technology, and they take risks in exchange for achieving. Strong and rapid growth with the potential for huge profits if successful.[3]
1.1.2. Legal definition of emerging enterprises
It is common knowledge that the legislator does not usually go into providing definitions of legal terms and has no business doing so, leaving jurisprudence and specialists in the field to undertake the appropriate definition of these terms.
However, in this matter, the legislator addressed the definition of the emerging innovative institution in the text of Article 6 of Law No. 15-21, which includes the directive law on scientific research and technological development.[4] The legislator also tried to refer to the emerging institution in several laws, including:
Law No. 17-02 relates to the guiding law for small and medium-sized enterprises. The provisions of this law referred to emerging enterprises as a promising sector that must be developed and promoted, as Article 21 stipulates that: “Loan guarantee funds and launch funds shall be established by the Ministry in charge of small and medium-sized enterprises under the applicable regulation”. “To guarantee loans to small and medium enterprises and promote emerging enterprises within the framework of innovative projects”.[5]
Law No. 19-14 containing the Finance Law of 2020 Article 69 stipulates: “Emerging companies are exempted from the tax on corporate profits and the value-added tax for commercial transactions”.
Executive Decree No. 20-254. It includes establishing a national committee to grant the label “emerging enterprise”, “innovative project”, and “business incubator”, and defining its tasks, composition, and functioning.[6]
Through this decree, we find that the Algerian legislator no longer has a precise definition, but rather specified in Article 11 of the aforementioned executive decree in Chapter Four, entitled: “Conditions for granting a mark” to an emerging institution, a set of standards, including but not limited to, as follows:
The institution is subject to Algerian law.
The institution must not exceed eight (08) years old.
The organization’s business model should be based on innovative products, services, business models, or any idea.
The annual turnover must not exceed the amount determined by the National Committee.
The company’s capital must be owned at least 50%, by natural persons or investment funds accredited by other institutions that have the “Emerging Institution” label.
The growth potential of the enterprise must be large enough.
The number of workers must not exceed 250 workers.
From the above, we note that the Algerian legislator relied on several standards while neglecting several basic standards, such as the technology standard among the criteria for classifying emerging institutions, and this is contrary to what is approved in most countries of the world, and the risk standard is that these institutions start from nothing to risk either success or failure.
1.2. Characteristics and importance of emerging institutions
1.2.1. Characteristics of emerging institutions
Emerging institutions are distinguished by several characteristics that distinguish them from other institutions, which can be summarized in the following points:
New companies are characterized by being young institutions, and they have two options: either to develop and transform into successful institutions or close their doors and lose.
The speed of growth of emerging enterprises through the ability to quickly advance their business, i.e. increase production and sales without increasing costs.
Start-ups rely on technology to grow, advance, and find funding through online platforms, and by winning help and support from business incubators.
The difference between emerging institutions and classic institutions:
Being a start-up is a temporary situation, either because the business model is not achieved, and therefore the start-up fails or disappears, or because it succeeds, is absorbed or transformed into a classic or almost traditional institution, and the transition from a large start-up expresses the moment in which it is decided to grow. That is the future of the emerging enterprise. Therefore, the most important element that makes the difference between emerging and classic enterprises is significant growth.[7]
1.2.2. The importance of startups
Emerging organizations derive their importance from being able to achieve the following:
Contributing to the gross domestic product and thus diversifying the country’s economic resources. It also enables the optimal exploitation of available local resources.
Meeting the requirements of major institutions for semi-finished products and others.
Creating wealth by relying on modern technologies and the ability to innovate and create.
Ease of achieving innovative methods in emerging institutions.
Effective contribution to creating new job opportunities and increasing competitiveness.
Excellence in quick decision-making and automatic flexibility, as well as the willingness to take risks and develop team spirit, makes it capable of absorbing economic crises with ease and smoothness.[8]
2. Legal texts governing emerging enterprises
Building any economic project, regardless of its nature or effectiveness, will not be successful in the absence of the legal and regulatory basis accompanying it. The same applies to emerging institutions adopted by the Algerian state as an alternative economic model for the advancement of the national economy.
From this standpoint, the issuance of texts regulating emerging institutions is considered the first initiative by the state, to embody its efforts to encourage this type of institutions, and in recognition of the necessity to organize them and determining their work, functioning, and methods for their promotion.
2.1. Executive Decree No. 20-254.
This decree is the legal basis for organizing the work of emerging institutions by defining their tasks and composition by creating a central committee mission of a national nature through which institutions are granted either the label of a business incubator, an innovative project, or an emerging institution, to develop and promote them and granting them investment opportunities and prospects, according to what is stated in the text of Article 1 thereof.
We cannot fail to point out the conditions for awarding each of the previous marks through the following:
2.1.1. Conditions for granting the “Emerging Enterprise” label
In addition to the previous conditions mentioned in the previous definition of emerging enterprises, the applicant for this mark must register in the national electronic portal for emerging enterprises and attach the following documents:
A copy of the commercial register and tax and statistical identification card.
A copy of the company’s bylaws.
CNAS Certificate of Affiliation with a List of Employees Attached
Certificate of Affiliation for Non-Employees CASNOS.
A copy of the financial statements for the current year.
A detailed business plan of the organization.
Scientific and technical qualifications and experience of the organization’s users.
Where applicable, every intellectual property document and any award or reward obtained.[9]
It should also be noted that the committee is responsible for responding after studying the file within a maximum period of 30 days starting from the date of application. The deadlines will stop if the file is incomplete, provided that the requesting party completes the file within 15 days starting from the date of notification by the National Committee.
If the committee rejects the application, it must justify this and notify the applicant electronically. The committee may reconsider the application based on a justified request from the institution, and it will be notified of the final response within a period not exceeding thirty days from the date of its submission.
Finally, if the committee accepts the application, the Emerging Enterprise Mark is granted for a period of 4 years, renewable once, based on a decision published on the main portal for emerging enterprises, and renewal takes the same procedures.[10]
2.1.2. Conditions for granting the “Innovative Project” label
Every natural person or group of natural persons can request the “Innovative Project” mark on any project related to innovation, and must register in the National Portal for Start-ups and submit the following documents:
A presentation about the project and its innovations.
Elements that demonstrate the great potential for economic growth.
Scientific and/or technical qualifications and experience of the team in charge of the project.
Where applicable, every intellectual property document and any award or reward obtained.
Every application to obtain the “Innovative Project” label will be responded to within a maximum period of 30 days from the date of its submission.
The “Innovative Project” label is granted to a natural person or group of natural persons, for a period of two years, renewable twice according to the same forms. Decisions to grant the “Innovative Project” label must be published in the national electronic portal for emerging enterprises.[11]
2.1.3. Conditions for granting the “Business Incubator” label
Every structure affiliated with the public sector, the private sector, or a partnership between them, is eligible to obtain the “business incubator” label, which proposes support for emerging enterprises and innovative project holders in terms of accommodation, training, counseling, and financing. Applications are submitted through the electronic portal accompanied by the following documents:
A detailed setup plan for the business incubator.
A list of the equipment you have at the disposal of incubated start-ups.
Providing various training and supervision programs proposed by the business incubator.
CV of business incubator users, constituents, and facilitators.
List of startups that have been incubated, if any.
Article 23 of Executive Decree No. 20-254 mentioned above also specified the structures for specific documents that must be added when submitting the file, which are:
A copy of the commercial register and tax and statistical identification card.
Certificate of the company by-laws.
CNAS Certificate of Affiliation with a List of Employees Attached
Certificate of enrollment in the National Social Insurance Fund for non-wage workers CASNOS.
A copy of the financial statements for the current year.
As for the procedures for obtaining an incubator institution mark, they do not differ from the procedures for obtaining a start-up institution mark, as the application is made through the electronic portal accompanied by specific documents following the legal texts. The committee is responsible for studying them and responding to the application within a maximum of 30 days. If the committee accepts the application The committee grants the business incubator mark to the structure for 5 years, renewable according to the same forms. The committee publishes the decision to grant the mark on the national electronic portal.[12]
2.2. Executive Decree No. 20-356 of November 30, 2020, which includes the establishment of an institution for the promotion and management of support structures for emerging enterprises and defines its tasks, organization, and operation
Executive Decree No. 20-356 relating to the establishment of an institution for the promotion and management of support structures for emerging enterprises and defining its tasks, organization, and functioning is a complementary decree to the previous decree, as after the Algerian legislator gave the concept of emerging enterprises and mechanisms for incubating them, as well as the conditions for obtaining the emerging enterprise mark, the Algerian legislator comes in; the decree announces the establishment of an institution whose mission is to promote and manage these structures.
2.2.1. Definition of the Agency for the Promotion and Management of Support Structures for Emerging Enterprises
The institution was created for the promotion and management of support structures for emerging institutions under Executive Decree No. 20-356, which was named “Allegria Vantur”, as it is considered a public institution of a commercial and industrial nature. In its relations with the state, it is subject to administrative law, and in its relations with third parties, it is subject to commercial law. The institution is placed Under the supervision of the Minister in charge of emerging enterprises, it has legal personality and financial independence, and its headquarters are in Algeria.[13]
2.2.2. Tasks of the Foundation for Promoting and Managing Support Structures for Emerging Enterprises
The Foundation is considered a tool for public authorities to implement the national policy to promote and manage support structures for emerging enterprises, especially incubators, accelerators, and innovation development. The Foundation undertakes the following tasks:
Participate in implementing the national strategy in the field of promoting and managing support structures for emerging enterprises according to each field of activity.
Participate in establishing new structures to enhance national capabilities in the field of accompanying innovation, stimulate the creation of emerging institutions, and contribute to economic and social development.
Preparing and implementing annual and multi-year programs to develop incubators and accelerators for emerging institutions in cooperation with various relevant stakeholders and ensuring their follow-up and evaluation.
Preparing and implementing acceleration approaches that ensure the follow-up of institutions bearing the “Emerging Enterprise” label and innovative projects bearing the “Innovative Project” label, as well as assessing their needs and approving that.
Encouraging and supporting every initiative aimed at promoting and developing innovation and support structures in consultation with various sectors of activity.
Contributing to technological vigilance and ensuring the publication and distribution on various media of all information related to technological innovation and entrepreneurship.
Managing the properties allocated to it and acquired for exploitation.
Preparing and following up on efficiency contracts for the services provided by the support structures placed under its responsibility, ensuring their respect and ensuring harmony and coordination among them.[14]
Conclusion
Emerging institutions are one of the new concepts in the Algerian legal system, as Algeria has shown, since 2020, a new trend that appears promising through the establishment of emerging institutions, starting with the development of a new legal and legislative framework, to creating a new economic model away from the rentierism on which the country’s economy has relied for decades, and thus investment and startups have become priorities for Algerian economic decision-makers, to contribute to advancing development and strengthening the local production machine.
Accordingly, after studying the legal system for emerging enterprises, this study produced a set of results and recommendations as follows:
Emerging institutions are considered an essential pillar for building the national economy.
It is necessary to reconsider the legal definition of startup companies so that it is more precise and clearer, especially concerning what is meant by an innovative project and high growth, and also to make it more comprehensive and expansive and not ration it with a specific size of business number and number of users.
Providing appropriate infrastructure and assistance in establishing these projects.
Creating a digital platform to eliminate the obsession with bureaucracy and the like.
Providing a suitable climate in the government’s strategies to attract emerging Algerian enterprises located abroad to develop the national economy.
Bibliography
Articles
Blood, O. (2022). The legal framework for emerging institutions in Algeria - Obstacles and prospects, Les Cahiers du Mecas magazine, Volume 18, Issue 2.
Graham, P., Want to start up? Get funded by Y Combinator, available at: https://paulgraham.com/start.html] Last access 03/16/2024[.
Othmania, A. Belabed, M., Emerging Institutions in Algeria between Organization Efforts and Support Structures, Journal of Annals in Economic Sciences, Bashar University, Volume 7, Issue 3.
Zaidi, H., Abdelaoui, M. (2023). Emerging Institutions in Algeria, An Analytical View of Legal Frameworks and Economic Impacts, Jou
THE ROLE OF BOOT CONTRACTS IN ACHIEVING ECONOMIC DEVELOPMENT – THE CASE OF ALGERIA
Full text linkThe BOOT (Build-Own-Operate-Transfer) contract is considered one of the innovative mechanisms for managing public facilities due to its importance in implementing investment projects, particularly in construction, operation, and property transfer. Its significance emerged at the beginning of the twentieth century and was further reinforced after the Second World War, amidst the presence of war-stricken economies. Additionally, there was an ideological shift in the role of the state from being a guardian state to an intervening state, which led to the emergence of public law in business affairs. The BOOT contract became one of its cornerstones as countries resorted to international economic contracts.
Despite Algeria’s adoption of the BOOT contract as one of the forms of international contracts due to its importance in attracting foreign direct investment and technology transfer, this did not prompt Algerian lawmakers to establish a specific legal framework for it. This is despite the modifications that have affected the specific system, notably Presidential Decree No. 15-247, which is considered one form of concession contracts.
Keywords: BOOT contract, investment, development, public facilities.
Introduction
The BOOT contract has become of great importance in many countries, especially developing ones, as it represents the optimal means within the reforms witnessed by the public sector. Through it, public facilities are established and utilized without burdening the state budget excessively. Instead, it leads to the creation of infrastructure projects for economic development.
Since contracting according to this method extends over a long period and requires substantial financial resources, it exposes it to numerous risks during implementation. This necessitates considering the issue of changing circumstances during implementation and developing appropriate solutions to avoid disputes between the contract parties.
Therefore, the problem arises regarding what is meant by the BOOT contract and what is the Algerian legislator’s stance on it?
To answer this, this research paper will address the nature of the BOOT contract (first chapter), followed by its applications in Algerian law (second chapter).
1. The Nature of the BOOT Contract
The globalization system imposes the need to enter into contractual forms on developing countries to benefit from modern methods of managing public facilities, including the BOOT contract. Therefore, studying the nature of the BOOT contract requires addressing its concept and legal implications in the following points are addressed:
1.1. The Concept of the BOOT Contract
Studying the concept of the BOOT contract requires addressing its definition, origin, evolution, and finally its characteristics as follows:
1.1.1. Definition of the BOOT Contract
The term “BOOT” contract stands for Build, Operate, Transfer, and is abbreviated as B.O.T. These terms correspond to the Arabic terms: البناء (Build), التشغيل (Operate), ونقل الملكية (Transfer of Ownership). In French, it is abbreviated as “C.E.T”,[1] representing Construire (Build), Exploiter (Operate), Transférer (Transfer).
It’s worth noting that there is a slight variation in terminology between “BOOT” and “BOT” contracts within legal discourse, with the letter “O” standing for “Own”,[2] signifying ownership.
Several attempts have been made to define this contract, not only by legal experts but also by international organizations specializing in economic and commercial affairs. The United Nations Commission on International Trade Law (UNCITRAL) defines it as follows: “It constitutes a form of project financing through which a government grants a group of investors a concession to develop, operate, and commercially exploit a specific project for a sufficient number of years to recover the construction costs as well as to achieve suitable profits from operational returns or other benefits granted to them within the contract. At the end of the project, ownership of it transfers to the government without any cost or a previously agreed-upon adequate cost during the negotiation for granting the project concession”.[3]
On the other hand, the United Nations Industrial Development Organization (UNIDO) defines it as: “A contractual agreement whereby the project company undertakes to establish one of the state’s essential public facilities, including the processes of design, financing, operation, and maintenance of this facility. The project company also manages the operation of the facility, along with any other fees provided they do not exceed those presented in the bid and those stipulated in the contract specifications, to enable the project company to recover the invested funds, operating expenses, and maintenance costs, in addition to a reasonable return on investment. At the end of the term, this company returns the project to the administration according to prevailing legal methods and bidding procedures”.[4]
Comparing these definitions, we find that the first definition emphasizes the economic aspect more than the legal aspect. Financial motivations are not the sole reasons for entering into this contract; there are other equally important motivations such as the pursuit of technology transfer, which may be monopolized by multinational companies. The second definition is more comprehensive, covering all stages of contract formation and termination.
Furthermore, the International Islamic Fiqh Council defines the BOOT contract as: “An agreement between the owner or its representative and the financier (the project company) to establish and manage a facility, collect its returns, in full or as agreed upon, over an agreed period with the aim of recovering the invested capital while achieving a reasonable return. Subsequently, the facility is handed over in a condition suitable for the intended purpose”.[5]
From a jurisprudential perspective, some jurists define the BOOT contract as: “Projects involving construction, operation, and transfer of ownership, where the government assigns these projects to a company, whether national or foreign, whether it is a private or a public entity”.[6]
1.1.2. Genesis and Evolution of the BOOT Contract
The United Kingdom was the first country to resort to these contracts for the construction and operation of public facilities during the reign of the Conservative Party under Prime Minister Margaret Thatcher. This was within the framework of the economic policy pursued at the time, known as the “Private Finance Initiative”. One of the prominent projects completed under this contract was the Channel Tunnel linking France and Britain, with the contract being signed in 1987 between the two governments and the company Euro Tunnel.[7]
Legally, Turkey enacted the first legislation regulating these contracts during the tenure of Prime Minister Turgut Özal.[8]
1.1.3 Characteristics of the BOOT Contract
The BOOT contract possesses a set of characteristics that distinguish it from other contracts, including the following:
1.1.3.1 in terms of parties to the contract
These contracts are concluded between two parties, with the first party representing a public legal entity, while the second party represents a private legal entity (whether natural or juridical, national or international). It is noteworthy that while the private sector has adopted this contracting method, it represents an exception to the rule applied internationally, which typically involves a public legal entity as a party to the contract.
1.1.3.2. In terms of purpose
The purpose of resorting to the BOOT contract is to establish public economic facilities to provide a public service to the public.[9] This is due to the financial burden imposed by the construction of public facilities on the state budget, especially concerning state infrastructure facilities such as airports, ports, and communications facilities.
1.1.3.3. State Supervision of Public Facilities
The contracting administration has the right to supervise and monitor the contracting party during the construction and operation of the public facility. This is because the executing party of the project acts on behalf of the administrative entity in providing public services to the public. Therefore, the administration has the right to ensure the interests of citizens on one hand and to safeguard the state’s interests on the other.
1.1.3.4. Financing of Public Facility Construction
The financing of public facility construction is the responsibility of the party contracting with the state or one of its public entities. This party bears the responsibility of providing the necessary financing either entirely or partially.
1.1.3.5. Implementation of the BOOT Contract
The BOOT contract is implemented in the form of a concession granted for a specified period known as the “concession period”. This is to cover the cost of constructing or renovating the public facility, in addition to obtaining profits from its operation. This is achieved in the form of fees collected by the project owner from the beneficiaries of the public facility in exchange for the services provided to them.[10]
1.1.3.6. Termination of the BOOT Contract
Originally, the public facility is returned to the contracting administrative entity after the end of the commitment period, typically in a usable condition and free of charge. However, it may happen that the public facility is transferred before the end of the commitment period, provided that the administrative entity pays fair compensation to the project owner. Additionally, the administrative entity may renew the concession period for the benefit of the contracting party or another party, or sell it as part of privatization.
1.2. Implications of the BOOT Contract
The implications of entering into a BOOT contract result in the creation of rights and obligations for contracting parties, which will be elucidated as follows:
1.2.1. Rights and Obligations of the Contracting Administration
The contracting administration enjoys a set of privileges concerning the contracting party in the BOOT contract, as follows:
1.2.1.1. Rights of the Contracting Administration
Right of Inspection and Supervision:
The right of inspection refers to the authority of the administration to intervene in the execution of the contract, direct the work, and choose the method of execution within the agreed terms and conditions of the contract. Supervisory authority, on the other hand, involves ensuring that the contractor fulfills its contractual obligations as agreed upon.[11]
The administration’s right to inspect and supervise the contractor is of utmost importance in a BOOT contract due to its potentially lengthy duration—up to ninety-nine years. Additionally, the commitment of the project company to transfer the public facility in good condition at the end of the contract necessitates supervision by the administration.
Right of the Administration to Amend the Contract:
The administration may choose to amend the contract at its sole discretion according to the needs of the public facility. However, this authority is restricted by the requirement to compensate the contracting party for any potential damage resulting from the amendment.[12] Amendments do not cover contractual terms but may include regulatory conditions related to the operation of the public facility. This authority is inherent in the general system and is exercised by the administration automatically without the need for explicit contractual provisions.
Right of the Administration to Impose Penalties:
This authority is considered one of the privileges enjoyed by the administration over the contracting party. Imposing penalties without resorting to judicial intervention prioritizes the public interest and ensures the continuity of the public facility.
Right to Retake the Public Facility Before the End of the Concession Period:
If it becomes evident to the administration that the management method of the public facility under the BOOT contract no longer aligns with the public interest, it has the right to change it to a method it deems more beneficial to the public interest.
2.2.1.2. Obligations of the Contracting Party
These obligations include:
Providing a Suitable Legal Environment:
It is the responsibility of the administration to create a suitable legal, administrative, and investment environment for the establishment and operation of public facilities. Political, economic, and legal stability serve as attractive incentives for booth foreign and domestic investment.
Executing the Contract According to the Principle of Good Faith:
The principle of good faith is a fundamental legal principle that is evident in contractual relationships, whether administrative or civil. It entails executing the contract in accordance with its terms and provisions. This obligation falls on all parties to the contract, particularly on the administration, which holds a superior legal position. Therefore, this obligation requires refraining from abusing the privileges of public authority for its own benefit.[13]
2.2.2. Rights and Obligations of the Contracting Party with the Administration
Just as the BOOT contract entails rights and obligations on the contracting authority, the contractor also enjoys rights and incurs corresponding obligations. These will be elucidated as follows:
2.2.2.1. Contracting on Personal Consideration
This commitment involves the contractor fulfilling its obligations under the contract by itself. Therefore, personal consideration is a fundamental element in the selection of the contractor by the administration in a BOOT contract.
2.2.2.2. Commitment to Project Execution According to Contractual Terms
Executing the BOOT contract according to the agreed specifications at its various stages is of great importance. The quality of execution ensures the continuity of the public facility and its transfer to the state in good condition.
2.2.2.3. Contractor’s Commitment to Operation
This stage in the BOOT contract is crucial for the contractor as it enables them to recover their expenses on constructing and equipping the public facility and to generate profits. Therefore, the project owner must provide a service to the public and adhere to the fundamental principles of operating the public facility.
2.2.2.4. Respect for Contract Execution Period
The BOOT contract is an important means for the administration to manage public facilities. Therefore, respecting the contract period is the application of the principle of continuous and regular operation of the public facility.
2.2.2.5. Contractor’s Commitment to Technology Transfer and Employee Training
The BOOT contract’s lengthy duration allows for technological advancements. Hence, it is the contractor’s responsibility to keep pace with these developments to ensure that the administration receives a technologically advanced and economically viable facility during its operation.
2.2.2.6. Contractor’s Commitment to Transferring Ownership of the Public Facility to the Granting Authority
At the end of the BOOT contract, the contractor commits to transferring ownership of the public facility to the administrative authority in good and usable condition.
2.Applications of the BOOT Contract in Algerian Law
Studying the applications of the BOOT contract in Algerian law requires understanding its legal basis, the Algerian legislature’s stance on its adaptation, and its practical applications. This will be detailed in the following points are addressed:
2.1. Legal Basis for the BOOT Contract in Algerian Law
The Algerian law has not explicitly named the BOOT contract, nor has it issued specific legislation regulating this type of contracting. However, implicit references to this contract have been made in various legal texts. Additionally, the Algerian legislature has taken a position on the legal adaptations of this contract, which will be detailed as follows:
2.1.1. Legal Texts Referring to the BOOT Contract
Several legal texts have referenced this contract in various fields. These will be mentioned as follows:
2.1.1.1. In Financial Law
Article 166 of the Financial Law of 1996[14] mentions that the construction, operation, and maintenance of highways may be subject to concession for the benefit of public or private entities.
Additionally, Article 167 of the same law states that concession holders may collect toll fees under specified conditions.[15]
2.1.1.2. In the Agricultural Sector
The executive decree No. 97-475[16] mentions the possibility of granting concessions for the construction of small and medium-sized irrigation facilities.
2.1.1.3. In Water Law
Article 17 of the Water Law mentions artificial[17] water properties that become state property without compensation after the concession period for construction and operation.
2.1.1.4. In Electricity and Gas Distribution Law
The legal text regarding electricity and gas distribution through channels in Article (02/9)[18] states: “Privilege is the right granted by the state to an operator, enabling them to exploit a network and develop it over a specific territory and for a specific period with the aim of selling electricity or gas distributed through channels”. Additionally, Article (07) of the same law adds: “New facilities for electricity production shall be constructed and utilized by any natural or legal person subject to private or public law holding an exploitation license”.
2.1.1.5. In the field of public contracts
The Algerian legislature has recognized the use of the BOOT (Build-Operate-Transfer) method in public contracts by subjecting the conclusion of agreements to delegate public facilities to the principles stipulated in Article 05 of Decree No. 15-247. While this procedure aligns with the nature of administrative contracts,[19] it may face challenges related to attracting foreign investments.
2.1.1.6. Under municipal law
Municipal Law No. 11-10 opens up the scope of BOOT contracts in several areas, including, for example, drinking water, road maintenance, public lighting, covered markets, and managing technical landfill centers.
2.2.2. The legal adaptation of the BOOT contract
There has been a legal dispute over the nature of the BOOT contract, divided into three directions. The first direction considers the BOOT contract as falling within the category of investment contracts, thus subject to civil and commercial law. The second direction[20] considers it contracts with a special nature, sometimes administrative contracts, and sometimes private contracts. The third and final direction,[21] predominant in public law jurisprudence, considers the BOOT contract, also known as the modern commitment contract, as administrative contracts subject to the general conditions applicable to such contracts.
The Algerian legislature has associated the BOOT contract with the concept of concession contracts. The term “concession” is used to refer to the BOOT contract, influenced by the opinion stating the administrative nature of the BOOT contract. For example, Article (76) of the Water Law states: “Concession to use water resources, which is a contract under public law, may be granted to any natural or legal person subject to public or private law who submits an application according to the conditions specified in this law and the procedures determined by regulation”.
2.2. The role of the BOOT contract in attracting investment
BOOT contracts are considered modern contracts in domestic and international transactions, and countries have resorted to them to attract and stimulate investment. Algeria is no exception, as will be explained in this requirement as follows:
2.2.1. Conclusion of the BOOT contract according to the provisions of investment law
Algeria has resorted to BOOT contracts as a tool to attract and stimulate investment. Examples include international investment contracts concluded by the Algerian state with international companies in the field of water desalination, concluded according to the BOOT contract. Article (81) of Law No. 05-12 concerning water states: “Under this law, it is possible to grant a concession to establish and exploit desalination structures or extract salts and minerals from saline water for the public benefit, according to the provisions of Order 01-03 dated the first of Jamadi Al-Akhirah 1425 corresponding to August 20, 2001, concerning investment development.”
As a result, these contracts have been concluded between the Algerian state, represented by the Algerian Energy Company (in which booth Sonatrach and Sonelgaz contribute), with a financing ratio estimated at 30%, and General Electric Ionics Hamma Holding Company, an Irish company with expertise in the construction and operation of such facilities, contributing 70% to the project to establish a water desalination facility in Hamma. This represents a form of partnership between the public and private sectors in managing water facilities. The concession period is estimated at thirty years from the date of the agreement’s entry into force, with a production capacity of 200,000 cubic meters per day, and the project’s value is estimated at $256 million.
Additionally, the National Energy Company concluded a BOOT contract to establish a seawater desalination facility in Skikda with a 51% contribution, with a Spanish company, Jaida, contributing 49%. The concession period extends for 30 years from the date of the agreement’s entry into force.
In this context, a water desalination and electricity production facility has been established in Arzew, Oran. It was created according to an investment agreement using the BOOT method between the National Investment Development Agency, with a 5% share, and a South African company, with a 95% share. The concession period also exte
COMMERCE IN THE SHADOWS: EXPLORING DARK WEB BLACK MARKETS
Full text linkIn the twenty-first century, several negative moments have accompanied many positive technological progress events. With the development of the digital world, criminals with special knowledge – cybercriminals have become active and have developed many means in the depths of cyberspace, with the help of which they achieve their criminal and illegal goals. The presented paper aims to analyze in detail and in-depth the system and working principles of digital black markets created by cybercriminals on the dark side of the Internet. The paper also looks at what tools and products are available on the digital black market and why digital black markets are hazardous to operate successfully. The paper analyzes practical cases, legal studies, and other interdisciplinary studies to present the problems in the legal struggle against digital black markets as of the day it was written. The paper’s primary purpose is to show why the unimpeded functioning of digital black markets on the dark web is dangerous – both for the ordinary citizen and the state structures. In the final part of the article, based on the analysis of the processed literature and practical cases, recommendations will be presented, the use of which is of particular importance to make the legal fight against digital black markets successful and to prevent such a dangerous phenomenon as digital black markets from existing in any part of the digital world.
Keywords: Cybercrime, Dark Web, E-Commerce, Darknet, Cybercriminal
Introduction
Technological progress has made everyday life easier for many people in the twenty-first century. Today, it is easier for people to connect because the development of technology has created many tools that have made it possible to perform previously tricky actions efficiently. One of the best results of progress is the development of the digital world. Today, if a person owns even one electronic device, be it a computer system or a mobile phone, and the device is connected to the Internet, individuals can perform almost any activity without leaving their homes. People use such systems for personal purposes, e.g. Reading an e-book, getting an education, or deepening personal relationships, as well as for other professional or commercial purposes - e.g. Remote work in various fields, be it remote court hearings or lecturing at a university. One of the areas that has developed in the digital world is online stores. At any part of the day, a person can remotely view what products the store offers him, select the desired product, pay the amount electronically, and wait for him to receive the desired item.[1] Of course, such possibilities greatly simplify a person’s daily life.
The development of technological progress, as mentioned, has made life easier for many people and created many opportunities. But, as in the case of any progress, in the case of technological progress, along with positive events, many adverse events have become its concomitants, in particular, a new type of criminals - cybercriminals[2] - have appeared in the digital world, whose goal has become to use the opportunities arising from the progress of the digital world to achieve their own criminal goals, e.g. Cyber extortionists,[3] cyber fraudsters,[4] and other kinds of cybercriminals. The mentioned cybercrimes look similar to crimes in the real world; however, in reality, they are entirely different from each other, both in terms of methods and ways of execution.[5]
Most people use computer devices such as digital banks, social platforms, and many other websites and applications for daily activities. However, most of the users do not know that the part of the digital world that they use every day is the smallest and does not even reflect the actual scale of the digital world.[6] When using the Google search engine (or any other traditional search engine), much of the data in cyberspace is not accessible because traditional search engines perform strict filtering so that various types of irrelevant data are not available to everyone.[7] The second part of the digital world, which the everyday ordinary user does not use and does not know, is the deep web,[8] and the part of the deep web where cybercriminals mainly operate is the dark web.[9]
In connecting to the dark web, anonymity, privacy, and other ways are especially protected, so it is challenging to identify the person who uses it. It is because of the mentioned opportunities that the dark web is the best place for cybercriminals and the so-called shelter.[10] It should be noted here that access to the dark web is not only used by cybercriminals. It is used by researchers,[11] and whistleblowers working in various government agencies so that if the agency violates the laws, they can inform the world about the case.[12] Of course, such actions are essential. However, the fact is that the majority of Dark Web users want to carry out their criminal activities anonymously and achieve specific criminal results.
In the early stages of the development of the digital world, cybercriminals, in the process of carrying out their criminal activities, were mostly in possession of the personal data of ordinary users, whether it was data about bank accounts, personal life data, or other kinds of information.[13] As a result of such criminal activities, which had a daily character, it is logical that cybercriminals accumulated a lot of data that they could no longer use personally, so it was on the agenda for criminals to create a system where they could sell such data or exchange it for other data they wanted. They imitated the so-called real-world black market system, where it is possible to buy any desired means illegally,[14] and cybercriminals in the dark web created a digital black market, the pace and scale of which has exceeded all expectations.[15] As of today, in the digital black market, it is possible to buy any digital or real-life products: a person can buy firearms,[16] drugs,[17] and prohibited pornographic material.[18] The list is not exhaustive - the digital black market offers users much more opportunities than one can imagine.
In this paper, the author will delve deep into the world of the dark web and the digital black market. The analysis will highlight the intricacies of how these markets work and their impact on society. The author will also discuss the dangers that come with the successful functioning of these black markets and why it is crucial to wage an unrelenting struggle against them. The existence of black markets in the digital world poses a significant threat to the safety and security of individuals, businesses, and even governments. Therefore, it is of utmost importance to take appropriate measures to eliminate them once and for all.
In the final part of this article, recommendations to implement to make the fight against cybercriminals successful will be provided. These recommendations will be practical, actionable and aimed at ensuring that the digital world is a safe and secure place for everyone.
The twenty-first century has given humanity many gifts - one of the greatest gifts is the development of the digital world because people’s lives have become much easier, and citizens can perform previously unimaginable actions or be associated with particular difficulties. If earlier it was challenging to connect with someone on the other side of the planet, today it is enough for two people to have access to any social network, and they will be in touch with each other in a few seconds. However, as mentioned, there are not only positive moments that accompany progress. In the early stages of the development of the digital world, more people have decided to use cyberspace for criminal purposes rather than to take care of its security. It can be said that cybercriminals have recognized the potential of cyberspace, while security experts have ignored it at the initial stage. This is one of the reasons why digital black markets exist and why it is easier for cybercriminals to engage in criminal activities on the dark web. Nevertheless, giving up is not an option. More people must understand what the dark web is to understand what the digital black market is so that more people are digitally armed so that the fight against cybercriminals becomes stronger and digital black markets disappear from the space of the digital world forever.[19]
1. Dark Web and Black Market
According to specialists in the field, the modern Internet can be likened to an iceberg, with the visible tip representing the part of the Internet that everyday users have access to and use on a regular basis.[20] However, this visible part only accounts for a small fraction of the total information available on the Internet. This is because traditional search engines like Google, Yahoo, and Bing are designed to filter out a large portion of the information available to ordinary users.[21]
In reality, the vast majority of the Internet lies beneath the surface, in what is commonly referred to as the “deep web”. This includes everything from private databases and password-protected websites to academic research and government records. However, there is also a subset of the deep web known as the “dark web”, which is intentionally hidden and requires special software to access.[22] Within the dark web, there exists a subset known as the “Black Market”. This is a hidden network of websites where users can buy and sell illegal goods and services, such as drugs, weapons, and stolen personal information. These sites are often accessed using specialized software that allows users to browse anonymously and avoid detection.
It is important to note that while the terms “deep web”, “dark web”, and “Black Market” are often used interchangeably, they actually refer to distinct parts of the Internet with different levels of accessibility and content. Understanding these terms is crucial for anyone who wants to navigate the Internet safely and responsibly, as it can help users avoid potentially dangerous or illegal activities.
1.1. Dark Web
The deep web is a vast and complex network that comprises all the information on the internet that is not indexed by conventional search engines. This includes various types of online content that are not easily accessible to the average user. However, the dark web, a segment of the deep web, is notorious for being a hub for cybercriminals.[23] The dark web is home to a range of confidential data, password-protected websites, and databases that are hidden from the public eye. Unfortunately, the dark web has become increasingly popular among cybercriminals, making it a significant cybersecurity threat. Therefore, taking necessary precautions while accessing the deep and dark web is essential to avoid any potential risks. It is where malicious users can conduct illegal activities such as trading stolen data, selling illegal goods, and planning cyberattacks. On the dark web, it is possible to find data that cybercriminals have illegally obtained and distributed e.g.
a) In 2019, cyber attackers spread the personal data of users of one of the banking systems of the Cayman Islands.[24]
b) In 2020, the personal data of the population of Georgia, which cybercriminals obtained by attacking the database of personal data protected in the Central Election Commission, was distributed.[25]
c) In 2021, cybercriminals spread the personal data of Washington Metropolitan Police officers.[26]
One cannot rely on traditional web browsers like Google Chrome, Firefox, or Microsoft Edge to access the dark web. Instead, they must use specialized software that provides high anonymity and security. One such software is Tor (The Onion Router), an open-source and free-to-use software that allows users to connect to the dark web securely and anonymously. Essentially, Tor routes internet traffic through several different servers worldwide, making it difficult for anyone to trace a person’s online activity or physical location. Moreover, Tor provides access to hidden websites that cannot be found through traditional search engines like Google or Bing. However, it’s important to note that the dark web can be dangerous, and users must exercise caution while browsing it. Several illegal activities take place on the dark web, including drug trafficking, human trafficking, and cybercrime. Therefore, users must be careful while accessing the dark web and avoid clicking on suspicious links or downloading files from unknown sources. Additionally, it’s recommended to use a VPN (Virtual Private Network) along with Tor to further enhance your anonymity and protect your privacy. By using Tor and following safe browsing practices, one can access the dark web and explore its content without compromising their security or privacy.[27]
The software mentioned in the text is designed to give users anonymity when they connect to the dark web. This is because anonymity is fundamental to the dark web’s existence. However, even users who are well-versed in security protocols are aware that relying solely on this software may not be enough to guarantee their anonymity. As a result, many users employ additional security measures to further reduce the risk of their anonymity being compromised and their identity being exposed.[28]
Despite the risks involved, the dark web remains a popular destination for cybercriminals due to its anonymity and lack of oversight. This has led to the development of a thriving digital black market, where users can buy and sell illegal goods and services without fear of being caught by law enforcement agencies.[29]
1.2. The Digital Black Market
When discussing the topic of black markets, many people tend to conjure up images of shady street corners or dimly lit alleyways where individuals can purchase illegal or hard-to-find goods. However, the reality of black markets in the modern world is vastly different, particularly when it comes to the digital realm. Digital black markets offer a far greater range of products and services to consumers than their real-world counterparts ever could, and as such, it has become crucial to examine the extent and significance of these markets. To fully understand the implications of digital black markets, it is important to analyze their scope, how they operate, and their potential consequences on society. By doing so, citizens can better equip themselves to combat the negative effects that these markets can have and ensure that our society remains safe and secure in the digital age. Furthermore, it is important to investigate the motivations of those who engage in the digital black market and the methods they use to navigate these online spaces. This can help us to better understand the factors that contribute to the growth of these markets and how people can work to prevent them from becoming a more significant threat in the future.
In the early 2000s, the concept of a digital black market began to emerge, driven by increased internet use for commerce. However, it wasn’t until 2011 that the black market truly reached new heights with the launch of Silk Road. This online marketplace allowed users to anonymously buy and sell illegal goods and services, including drugs, weapons, and stolen personal information.
Silk Road quickly gained notoriety and became a hub for criminal activity. It operated on the dark web, a part of the internet that is not easily accessible to the general public and is often used for illicit purposes. Despite attempts by law enforcement to shut it down, Silk Road continued to thrive, earning an estimated 183 million USD during its period of operation.[30]
In 2013, the Federal Bureau of Investigation (FBI) finally managed to shut down Silk Road and arrest its founder, Ross Ulbricht.[31] This was a significant victory for law enforcement, but it didn’t take long for other cybercriminals to see the financial potential of running a digital black market.
Soon after Silk Road’s demise, Silk Road 2.0 emerged, promising to be even bigger and better than its predecessor. However, its functionality was short-lived, as it was also shut down by law enforcement soon after its launch.[32] Nevertheless, the success of the Silk Road had already set a precedent, and other black markets such as Hansa[33] and Alpha Bay[34] surfaced to take its place.
The rise of digital black markets has posed a significant challenge to law enforcement agencies worldwide in recent years. One of the key factors driving the growth of these markets is the emergence of cryptocurrency as a payment method. Cryptocurrency, by its very nature, is designed to be anonymous and decentralized, making it an ideal payment method for people who want to remain hidden while engaging in illegal activities.
When a person purchases a product from a digital black market using cryptocurrency, they can do so without leaving a trace. Authorities can easily trace traditional payment methods like credit cards or bank transfers, but cryptocurrency transactions are much harder to track. This makes it difficult for law enforcement agencies to identify the seller and the buyer,[35] allowing these markets to operate with impunity for extended periods.
While it is technically possible to trace cryptocurrency transactions, doing so is time-consuming and labour-intensive, requiring specialized knowledge and resources. As a result, individual buyers who use cryptocurrency to purchase illegal goods or services often go unpunished, and digital black markets can continue to operate for years before they are finally shut down by law enforcement agencies.[36]
The use of cryptocurrency in digital black markets has raised many concerns among governments and policymakers, who worry that it will make it much harder to combat illegal activities such as drug trafficking, money laundering, and terrorism financing. Some countries have taken steps to regulate cryptocurrency more closely, while others have banned it outright.
Despite these efforts, digital black markets continue to thrive, and the use of cryptocurrency as a payment method is likely to remain a significant challenge for law enforcement agencies in the years to come. As new forms of cryptocurrency emerge and technology evolves, tracking transactions will be even harder, making it easier for criminals to engage in illegal activities.
The rise of cryptocurrency has made it easier for people to engage in black market trading by providing an anonymous payment method that is difficult to trace. While it is possible to track cryptocurrency transactions, doing so is time-consuming and resource-intensive, often yielding little results. As a result, digital black markets continue to operate, posing a significant challenge to law enforcement agencies worldwide.
It’s important to note that the digital black market is not limited to just those abovementioned platforms. Countless other black markets exist on the dark web.[37] To help readers understand the breadth of this underground economy, it’s important to look beyond just listing the marketplaces themselves. It’s also important to examine the available products and services on these platforms. From stolen personal information, counterfeit goods, and illicit drugs to hacking services, malware, and firearms, the digital black market offers consumers a wide range of illegal products and services. By understanding this market’s scope, individuals can protect themselves and their personal information online.
2. Products on the Digital Black Market
The preceding sections of the article have extensively discussed the topic of the digital black market and its exponential growth. It has been emphasized multiple times that the digital black market has become a massive enterprise, and its operations have reached unprecedented dimensions. To fully comprehend the extent of the dangers posed by the digital black market and understand why it is challenging to combat it, it is essential to have a clear understanding of the various products and services readily available on digital black market platforms. The digital black market is a clandestine platform that facilitates the trading of illicit goods and services, which include but are not limited to drugs, weapons, counterfeit products, stolen data, and hacking tools. The platform also offers various services like money laundering, identity theft, and hacking. The anonymity provided by the platform enables the buyers and sellers to operate with impunity, making it difficult for law enforcement agencies to track down the perpetrators. It is crucial to have a comprehensive knowledge of the workings of the digital black market and the range of illicit goods and services traded on these platforms. The digital black market is a hub for cybercriminals, who use it to sell and purchase illegal items, significantly contributing to the global cybercrime economy. The products and services traded on these platforms are harmful to individuals and pose significant threats to national security. For instance, cybercriminals can use the data stolen from individuals to launch targeted attacks on government agencies or corporations, leading to significant financial losses and reputational damage. Therefore, it is crucial to have a comprehensive understanding of the workings of the digital black market and the range of illicit goods and services traded on these platforms to combat this growing threat.[38]
2.1. Drugs
The digital black market is primarily fueled by the demand for drugs, making it one of the most common products found there. Every type of drug imaginable, including those that have never been heard of before, can be found in this unregulated market. Some of these drugs are newly invented and created by amateur chemists in their base
GEORGIAN COMPETITION LAW IN THE DIGITAL AGE – GEORGIAN PRACTICE AND EXISTING CHALLENGES
Full text linkThe article identifies, systematizes the decisions taken by the Georgian Competition and Consumer Agency regarding digital markets/competition and reviews the practices established by the Agency based on the said decisions. The introduction of the article highlights the significant challenge of modern competition law, which implies that competition law does not exist independently of era and context, and it is important that competition law and its enforcement mechanisms function effectively in the conditions of the modern digital economy. The article then defines the digital economy and describes two of its key features, (big) data and digital platforms. A number of theoretical problems are then mentioned which may hinder the effective enforcement of competition law in relation to similar economic agents/markets.
The main part of the article will concern the review of the decisions made by the Competition Agency in relation to online markets and digital platforms. Since there are currently no special legislative or by-law norms necessary for the effective enforcement of competition law in the digital age, the Competition Agency is guided by the general legislative framework regulating competition law to resolve similar issues. The analysis of the decisions revealed that the practice of the Agency develops in the direction of only two: (I) unfair competition (II) agreements restricting competition, and currently there is no, for example, a decision of the Competition Agency regarding the abuse of a dominant position by digital platforms