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Grigol Robakidze University GRIGOL ROBAKIDZE UNIVERSITY ACADEMIC DIGEST LAW №2 TBILISI - 2013 1 Editorial Board: Mamuka Tavkhelidze - Editor-in-chief (Tbilisi, Georgia) Georgi Glonti - Deputy Editor-in-chief (Tbilisi, Georgia) Nino Kemertelidze - Deputy Editor-in-chief (Tbilisi, Georgia) Devi Khvedeliani (Tbilisi, Georgia) Zurab Dzliarishvili (Tbilisi, Georgia) Malkhaz Badzagua (Tbilisi, Georgia) David Dzamukashvili (Tbilisi, Georgia) Valerian Khrustali (Tbilisi, Georgia) Otar Gamkrelidze (Tbilisi, Georgia) Manana Mosulishvili (Tbilisi, Georgia) Temur Todria (Tbilisi, Georgia) Iakob Putkaradze (Tbilisi, Georgia) Levan Izoria (Tbilisi, Georgia) Gia Dekanozishvili (Tbilisi, Georgia) Khatuna Loria (Tbilisi, Georgia) Hans Joerg Albrecht (Freiburg, Germany) Trevor Cartledge (Nottingham, Great Britain) James O. Finckenaur (Newark, N.J. USA) Eliko Tsiklauri-Lammich (Freiburg, Germany) Olena Shostko (Kharkov. Ukraine) Alexander Salagaev (Kazan, Russia) Anna Margarian (Erevan, Armenia) Kamil Nazim Oglu Salimov (Baku, Azerbaijan) Jovan Shopovski (Kocani, Macedonia) Dejan Marolov (Kocani, Macedonia) Giorgi Todria Executive Editor (Tbilisi, Georgia) In the given academic digest are presented the articles of well-known Georgian and foreign scholars on the issues legal studies. © Grigol Robakidze University Press 2 Content James Finckenauer, Aunshul Rege 4 CRIMINAL ORGANIZATIONS AND HARMS ASSESSEMENT: A RESEARCH PROPOSAL Helmut Kury, Annette Kuhlmann 19 MEDIATION IN GERMANY AND OTHER WESTERN COUNTRIES Svetlana Paramonova 38 BOUNDLESSNESS OF CYBERSPACE VS. LIMITED APPLICATION OF THE NATIONAL CRIMINAL LAW (ON EXAMPLE OF RUSSIAN, US-AMERICA AND GERMAN LEGAL SYSTEMS). INTERNATIONAL CYBERCRIME COURT Margarita Zernova 51 RUSSIAN POLICE AND CITIZEN: PUBLIC RESPONSES TO THE STATE OF CONTEMPORARY POLICING AND THEIR UNINTENDED CONSEQUENCES Dejan Marolov , Elena Ivanova 65 THE POSSIBLE NEGATIVE ASPECTS OF THE ADOPTION PROCEDURE Helmut Kury , Oksana Ilchenko 73 THE EFFECT OF PUNISHMENT AND CRIME RATES IN THE WEST AND RUSSIA Olena Shostko 94 THE ROLE OF CIVIL SOCIETY AND STANDARDS OF THE FATF IN FIGHTING POLITICAL CORRUPTION IN UKRAINE Eliko Tsiklauri-Lammich 101 STRUCTURAL VIOLENCE AND SOME OTHER FORMS AND MANIFESTATIONS OF VIOLENCE Gia Dekanozishvili, Guram Rostiashvili, Dimitri Dekanozishvili 119 PROBLEMS OF THE TESTIMONY VERIFICATION OF CRIME COMMITMENT Giorgi Todria, Manana Mosulishvili, Amiran Mosulishvili 124 PECULIARITIES OF THE EVOLUTION OF POLICE GOVERNANCE: STRATEGY AND TACTICS OF FOREIGN COUNTRIES 3 James Finckenauer Rutgers University, Newark, NJ, USA Aunshul Rege, Temple University, PA, USA CRIMINAL ORGANIZATIONS AND HARMS ASSESSEMENT: A RESEARCH PROPOSAL Abstract The article is devoted to International Organized Crime (IOC) issues. The authors analyzed questions related to measuring of the harm resulting from international organized crime particularly economic harm caused by IOC groups and other impacts, such as human misery, public safety and threats to free commerce. Authors suggested five hypotheses can be broken down into five sub-hypotheses based on the characteristics of criminal organizations: 1. The more sophisticated the criminal organization, the larger its harm capacity. 2. The more complex the structure of the criminal organization, the larger its harm capacity 3. The more a criminal organization exhibits stability, the more likely it is to cause harm. 4. The stronger the self-identification exhibited by members of a criminal organization, the more likely it is to cause harm. 5. The greater a criminal organization’s authority of reputation, the larger its harm capacity. Key words: Organized crime; Harm capacity; Criminal organizations Introduction To point out that crime and criminal behavior cause harm is no great revelation; nor is pointing out that this harm varies in its nature, magnitude and seriousness. Further, there are differences among criminals in their ability or capacity to cause harm, and at least one of those differences is between criminals who commit their crimes alone versus those who commit them as members of criminal groups. The latter would seem to hold true in most criminal instances, with the possible exception of extraordinary or unusual criminals such as serial killers and mass murderers. Assuming that there is variability with respect to harm capacity among criminals and criminal groups, and also in the harmfulness of their crimes, it is both important theoretically and potentially useful for policy purposes to carefully examine this variability and its consequences. Focusing specifically on criminal organizations – those principally engaged in what is commonly known as organized crime, as a generic category -- what are the characteristics of these kinds of organizations that determine their harm capacity? And, by looking at the crimes they have committed, can one discern a relationship 4 between those characteristics and the degree of harm that emanates from their criminal behavior? The goal of this proposal is to test what has been called elsewhere the “harm capacity” thesis (Marvelli & Finckenauer, forthcoming). In brief, this thesis is that a criminal organization’s capacity to commit harm varies based upon the degree to which they possess certain primary characteristics. The challenge for the research is to identify groups that have been (and possibly still are) committing crimes, and then to assess the consequent harm from their criminal activities. Harm Capacity The definition of organized crime, and by extension the definition of what is a criminal organization, have both long suffered from a kind of collective ambiguity. We do not need to elaborate on that ambiguity here, but rather simply to state that the assumption for our purposes here is that “organized crime” is that crime that is collectively committed by criminal organizations. Finckenauer (2005 & 2007) has identified the characteristics of criminal organizations that many scholars have agreed upon as being essential elements to any definition of organized crime. Of particular import are five essential characteristics: sophistication, structure, stability, self-identification, and authority of reputation. Finckenauer (2005:76) argued that “criminal networks that are totally or even substantially lacking in [these characteristics], should not be considered true criminal organizations.” “Criminal networks” here refers to a sort of umbrella category that captures a variety of groupings of criminals, ranging from the very loosely organized to some others that are more structured. A criminal network has been defined as being composed of “key individuals who engage in illicit activity together in often shifting alliances; [t]hey do not necessary regard themselves as an organized criminal entity” (United Nations 2002, 19). Our presumption is that all criminal groupings in fact have the characteristics mentioned above to a greater or lesser degree. The extent to which these characteristics are possessed is obviously critically important. Sophistication, involves the degree of preparation and planning for the crime and how much skill and knowledge are needed in order to commit the crime. Structure entails a division of labor with clearly defined lines of authority. Stability pertains to the organization’s ability to maintain itself over time and crimes. Self- identification, as the term implies, involves the participants identifying themselves as members of a defined organization. And lastly, authority of reputation is the extent to which a group is able to force others-criminals and non-criminals—to do what it wants without regularly having to resort to actual physical violence. The research we are proposing here would assist in moving away from the kind of risk and threat assessments that have traditionally been used to develop policy focus and priorities in combating both domestic and transnational organized crime. Instead, we propose moving towards harms assessment. The traditional law enforcement approach has been to identify 5 criminal organizations and individuals with the goal of disruption and/or prosecution. Most previous assessments of organized crime have been conducted by law enforcement agencies (Albanese, 2008), and these assessments generally focus on the “most serious” groups or individual members. The aim has been to identify the criminal organization and/or criminal that is of the greatest threat, and then to pursue disruption and prosecution. Measuring Harm Recently, there has been an evolution in threat assessment away from this historical focus on individual criminal organizations, toward a greater focus on criminal enterprises and markets. But the ability to measure the criminal markets that criminal organizations participate in has remained elusive for both practitioners and scholars. In large part, this inability to measure criminal activity is hindered by the secretive nature of the activity. In the parlance of criminologists, the “dark figure” of crime poses the greatest challenge to measuring organized crime. The true quantities of narcotics or numbers of people being trafficked, for instance, are largely unknown. At best, we have only rough estimates concerning these sorts of crimes (Marvelli & Finckenauer, forthcoming). Beyond these specific, even if unknown figures, ther are more general “dark figures.” How for example do we measure and perhaps quantify such other impacts of transnational organized crime as human misery, public safety and the threats to free commerce (EWG, 2010). In one of the earliest efforts in the direction of
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