The relationship between international and domestic law has always been very competitive one, meaning one of them always wants to have the supremacy over the other. But this competition needs to be immobilized since both of these laws need to correlate with each other. And even though in certain cases they will correlate, still international law needs to be binding over the domestic law. The binding character needs to be presented especially in the criminal sanctions with reference to the misuse or abuse of power.
Abuse of power can be defined as the misuse or abuse of a leadership position and the power that comes with it. It can be used for someone's own benefits or advantage, or it can be used to manipulate, use, misuse people, organizations, and even governments. The crime for this kind of an abuse of power has many names depending on the area or the action of the crime or abuse, for example a white-collar crime, economic crime, organizational crime, occupational crime, public corruption, organized crime, and governmental and corporate deviance. What all of these crimes have in common is the deception, manipulation and fraud used by the person who has the power.[1]
Furthermore, when discussing the term abuse of power, the question of legitimacy of that power is at stake. A difference needs to be made between legitimate and illegitimate power, and its use and abuse. For example, political power is legitimate only if it comes from the community that chose it, within a defined constitutional and legislative framework. Economic power, is legitimate when practiced by industrial or commercial businesses under the frame of the laws. Therefore, if the power is conducted and governed by laws it is legitimate, but when owning such powers, they have to be managed carefully and by people who have a proven credibility since the stability of these powers can be easily disrupted, and be abused. The word abuse comes
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from the Latin word "abusus" which means the use of power that is conducted in a bad manner or excessively. But the concept of abuse, especially of abuse of power is vague. The abuse, lies in the aims of the power to be exercised, as well as in the means that are used to exercise that power. The abuse occurs when legitimate means are used in order to achieve illegal ends. Therefore, the abuse occurs when the power is used with violent, misleading or corrupt means in order to achieve dishonest or harmful purposes. The concept of abuse of power lies upon three principals: 1) the purpose; 2) the means; and 3) the limits where the power is exercised.[2] To clarify, in regards to the first principle, the abuse of power occurs when there is unlawfulness in the purposes it wants to achieve. The second principle, implies that the power may be used by illegitimate and unlawful means. Because the abuse of power often happens due to a rapture in the system. And the third principle implies on the limits, meaning that the abuse of power occurs when the power is exercised beyond its legal limits. Furthermore, Petro R. David defines the abuse of power as a power that can be normative and relative. He implies that the abuse of power can be normative because it is linked to the norms and values. So, the difference between the normal exercise of power and the abusive exercise of power it is distinguished through the normative definition. But, Petro R. Davis also defines the abuse of power as a relative concept, because this kind of abuse can vary from one country to another due to cultural, ideological, political and economic differences in the systems.[3]
As explained above there are different types of abuse of power depending on the area of action. The political and economic abuse of power are most likely to be seen. For example, the political abuse is the widest spread and covers all the competences of the government minister/prime minister. But the legal responsibility as a concept in regards to this kind of abuse is very limited because it covers only the cases where the minister breaks the law, and where there are legal consequences. The Venice Commission uses the term "political ministerial responsibility," to cover all the areas where the minister that abuses the power may be responsible for his/her actions. Furthermore, the term "criminal ministerial responsibility" is used when a minister breaks the laws and is a subject to criminal legal sanctions that are implied in the law of Article 6 of the European Court of Human Rights. And when determining if there are a criminal responsibility all three criteria established by the ECtHR with regard to Article 6 can be used. But despite the ECtHR the political responsibility can be seen as an informal action, for example by using criticism, and in a formal action when using formalized procedures that are governed by laws. And despite all of the above, we have to take into consideration that most countries in the world have some kind of le-
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gal immunity for heads of state (kings and presidents), prime ministers and so on, that covers most instances in which the head of state/the minister may be held legally responsible and in which cases it is cleared from that responsibility. And if these actions are not covered by the legal immunity, then they will fall in a category of sanctions that will fall under the disciplinary measures.[4] Therefore, head of states despite the legislation and their responsibility can still bypass the system and walk away free.
The meaning of the term sanctions in the context of political restrictions it is directed towards countries, groups, entities or individuals with the aim to persuade change, presenting obstacles, or giving a signal about the behavior of the perpetrator. Sanctions may vary depending of the situation: they can be arms embargoes, import and export bans, financial restrictions and travel bans (of course these can apply to countries, organizations, groups, individuals). Also, they can be unilateral or multilateral. But in order for the sanctions to be effective, states need to use penalties for the sanctions in the national jurisdiction. But as mentioned above in regards to individuals, in practice, very few individuals or legal persons responsible for violations and abuse of power are held accountable.[5] Sanctions from an international relations perspective refer to the measures undertaken; therefore, the sanction is used to act upon the breach of the legal norm.[6] The majority of states categorizes the sanctions as a criminal offence, and only few views it as an administrative.[7]
Furthermore, the technical procedure of the whole process, meaning the investigation, the prosecution and the punishment of abuse of power is very difficult. This process is difficult because firstly there are no penal provisions covering the abuse or if there are they are very vague. Secondly there is the complexity and technicality of laws and regulations that are governing the areas where such crime can occur. Thirdly the traditional criminal law as we know it is not flexible. And finally, as the biggest obstacle there is the influence of the political and socio-economic status of the offender and his/her corruptive influence on the organs of justice. All of the above prevent the discovery, prosecution, conviction and punishment off the offender. This is because all the actors involved in the process are interlinked with each other and they all have something to gain from the process. The fact that there is no proof of the abuse, and the fact that the documents or other factors are handled by a third party that is completely loyal to the offender, there is no way that this crime can be traced. There is cooperation between all of the parties involved, keeping silent and safeguarding the evidence. Furthermore, the police and the judicial organs are either preoccupied with other crimes or they can be affiliated in the crimes made by the offender. Therefore, there is a lack of specialized authority, with
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the expertise in each sector to foresee and prevent this kind of crimes.[8] Therefore, the sanctions that exist are either very vague or they are not binding in the countries national legislation.
In regards to the Relationship between International and domestic law, and especially in regards to criminal sanction towards the misuse or abuse of power, there is a procedure of implementation of principles by states who are parties to the Rome Statute which are obliged to harmonize their national laws with the international standards. But it has to be taken into consideration that international law is not always unified and many times it is influenced more by the bigger, and the stronger countries, meaning the countries that have higher representation of delegates in reality have greater influence present from their national traditions in the drafting of certain international laws then the smaller states. And instead of attempting to bring legal traditions from national laws into international law, international law should be influenced by commonly shared "universal values." International criminal law is a mixture of international law, customary law, and general principles that are influenced from domestic law. Therefore, the general principles, which derive from domestic jurisdictions, have influenced and shaped international criminal law instead the other way around. These principles are used as a source of law in the jurisprudence in international courts and tribunals.[9] Therefore, to some extent domestic law is more influential over international law.
But when examining the relationship between international and domestic law, it is important to analyze the difference between the two theories of dualism and monism. Is it possible for one law to overrule the other? Or they can exist cooperatively. Under the dualism theory, there is a clear distinction between international and domestic law, as separate laws, that regulate different subjects. Therefore, international law regulates the relationship between sovereign states, domestic law regulates rights of people and entities within the state. So, under the dualism theory, neither of the laws has an absolute power over the other. Opposite of the dualism theory, the, monism theory believes in the supremacy of international law and believes that domestic law is part or a subject of international law. The monism theory believes that both laws are part of the same system based on general notions and principles. This idea interlinks into another alternative theory which leads to, that international and domestic law are overruled by a general legal order which comes from natural law. Also, for the monists, individuals are subjects of international law who are represented by the state. Therefore, the two laws work in dif-
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ferent spheres, which gives them supremacy and prevents them from conflicting each other.[10] One thing can be concluded, that the Rule of Law applies in both international and domestic law as well as in both of the theories presented. And no matter which theory is applied, the domestic implementation of international law is fundamental for the stability of the system and the rule of law. International law should be binding but this does not mean, however, that it should have supremacy over the Constitution or the domestic law.[11] It simply means that both laws need to correlate with each other in order for the system to work. Because if they don't, then what kind of principles will be used in order for the criminal sanction to be incorporated especially in regards to the misuse of power. The sanctions for these kinds of crimes need to be unanimous on the international lever and with supremacy in order to prevent for such crimes or abuses to happen.
It can be concluded that the abuse or misuse of power is more frequent and present than it is believed. This is because the sanctions for this kind of abuse are vague and restrictive, and they do not apply to all. Also, in this kind of cases there is the scenario of the spider web, meaning the abuse of power is usually not one's man's job it is interlinked and connected with other abuses of power, and this goes on and on. That is why it is of crucial importance that the relationship between international and domestic law is strong and they correlate with one another no matter which theory we believe in, monistic or dualistic. And no matter which one is supported it simply should be acknowledged that international law should be part of domestic law. And in regards to the supremacy of one law over the other, it can be concluded that they should be in correlation with one another and especially in regards to the criminal sanction with reference to the misuse or abuse of power. Because, the person who has power it does not limit this power only to its profession and its surrounding, but this power is practiced on a wider and higher level so when both international and domestic law work together than maybe the abuse of power can be sanctioned and governed more strictly than it is at the moment. ■
NOTES
[1] B Auchter; J Katz; M Graham. Crime and the Abuse of Power - Offenses and Offenders Beyond the Reach of Law? Retrieved from: Crime and the Abuse of Power - Offenses and Offenders Beyond the Reach of Law? / Office of Justice Programs (ojp.gov)
[2] Pedro R. David. Measures to Protect Victims of Crime and the Abuse of Power in the Criminal Justice Process. Retrieved from: No70_10VE_David1.pdf (unafei.or.jp)
[3] Pedro R. David. Measures to Protect Victims of Crime and the Abuse of Power in the Criminal Justice Process. Retrieved from: No70_10VE_David1.pdf (unafei.or.jp)
[4] Mr James HAMILTON, Ms Maria Fernanda PALMA, Mr Fredrik SEJERSTED, Mr Kaarlo TUORI. "REPORT ON The Relationship Between Political and Criminal Ministerial Responsibility." European Commission For Democracy Through Law (Venice Commission). Strasbourg, 11 March 2013 Study No. 682 / 2012. Retrieved from: default.aspx (coe.int)
[5] Prosecution of Sanctions (Restrictive Measures) Violations in National Jurisdictions: A Comparative Analysis. 2021. Retrieved from: Expert Report - Prosecution of sanctions (restrictive measures) violations in national jurisdictions: a comparative analysis (europa. eu)
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[6] Tom Ruys. Sanctions, Retorsions and Counter-measures: Concepts and International Legal Framework. Forthcoming in Larissa van den Herik (ed.), Research Handbook on UN Sanctions and International Law (Edward Elgar Publishing)(2016 Retrieved from: SSRN-id2760853.pdf (ohchr.org)
[7] Prosecution of Sanctions (Restrictive Measures) Violations in National Jurisdictions: A Comparative Analysis. 2021. Retrieved from: Expert Report - Prosecution of sanctions (restrictive measures) violations in national jurisdictions: a comparative analysis (europa. eu)
[8] Pedro R. David. Measures to Protect Victims of Crime and the Abuse of Power in the Criminal Justice Process. Retrieved from: No70_10VE_David1.pdf (unafei.or.jp)
[9] Iryna Marchuk. The Fundamental Concept of Crime in International Criminal Law A Comparative Law Analysis. Springer 2014 Retrieved from: r32691.pdf (corteidh.or.cr)
[10] TSL A. The Relationship Between Domestic and International Law: Part 1" 2012 Retrieved from: The Relationship Between Domestic and International Law: Part 1 | The Student Lawyer
[11] European Commission For Democracy Through Law (Venice Commission) Rule of Law Checklist. 2016 Council of Europe. Retrieved from: Rule_of_Law_Check_List.pdf (coe.int)
Lábjegyzetek:
[1] The Author is associate professor, Faculty of Law, University "St. Kliment Ohridski"-Bitola, North Macedonia director of the II Cycle Studies. E-mail: elena-tilovska-kechegi@hotmail.com
Visszaugrás
