Attorney Hunger Strike Means Georgian Justice Died

Lia Mukhashavria Shares Attorneys’ Hardest Conditions

Eka Kevanishvili, Tbilisi

Attorneys are sick and tired of remaining silent. They want to become more active in the pre-election period. Moreover, they have now decided to speak openly about legal gaps in the law as well as the general problems facing the profession. The dire herald of the Georgian legal system has only been highlighted by a very few until this time. “It is an act of last resort when attorneys take to street protests out of sheer desperation. It is only when there is not other option left open to them.  Taking to the street portends that they have no other way out. This means that Georgia justice is dead”- this is how Lia Mukhashavria, a well-known attorney described the real situation facing legal system in Georgia.

Her interview is as follows:

Journalist:  Ms. Lia, the recent events demonstrated how attorneys have been facing serious problems lately. The problems are so vast that they decided to express their protest in the streets using the extreme measures. This begs the question, is the problem so serious? How do you estimate the pre and post Rose Revolution period in terms of the legal sphere?

Lia Mukhashavria: I am not working at any case in Georgia at present and therefore I do not have everyday contact with court and the Office of the Prosecutor General. However, I am still very much aware of all what is going-on. Conducted press conferences before the Rose Revolution were fruitful. Now all efforts are less effective. The response from the relevant bodies had been able to be seen. When I worked for the “Article 42 of the Constitution” (NGO), the initiative of our organization to name the best and the worst judges and prosecutors of the year, which was mirrored by the other side, (meaning the side of the prosecution), and such ratings should continue to the present.

I do not become the member of the Association of Attorneys by happenstance in spite of the fact that I passed the examinations to receive certification as an attorney. For now, I am waiting for the moment when I, as the attorney am removed from the case. When such a thing transpires, I will then be a victim and file a case, and if necessary, I take the case as the way to the European Court of Justice. My motivation is that I must not become a member of the Bar Association for several reasons: first, this Association is a public legal entity. I have always wanted to be an independent professional. Being a member of the Association, makes me feel something closer to a civil servant. The Association is the only union of the attorneys in Georgia. As a result, there are no other options for membership besides this one organization. The politics of subordinating the attorneys following the Rose Revolution has become a very pressing issue. Amendments to the “Law on Legal Profession” have forced the attorneys to unite in this unique Association.

J.: So you are saying that there is a serious method of influencing Association members.

L.M.: Yes, the influence is substantial. I remember at the beginning when the Association was established, the Ethic Committee of the Bar Association was strong enough to stand the pressure, the statements, and the appeals of the courts and the representatives of the Prosecutor General against particular attorneys who were Bar Association Members. Times have changed the state detains and arrests the attorneys directly. How does the Association react on it? Has it adjudicated any of the cases? Has it confirmed that the attorney was guilty or stated that he/she was the victim of some provocation?

I stated that the arrest of an attorney was the first sign of a totalitarian country, especially on the arrest of Kartlos Gharibashvili, a well-known attorney. This statement provoked a serious reaction, attorneys are then convicted; this vividly demonstrates just what a difficult situation that faces this profession in Georgia.

I addressed the Bar Association with the request for the establishment of minimal standards attorneys taking cases to the European Court of Justice I even suggested that one of the minimal requirements to be the knowledge of the language of legal proceedings. However, there was no respond to my address. 

If we (attorneys) are going to reach professional heights, and win cases even in the European court, the government and ones that the government will take notice of, there must be some respect for attorneys, and in such a way that the police will not arrest them over some flimsy allegations. Examples when the police said that they did not like the looks of the person, as he seemed very thin, not knowing that this person is a well-known attorney hunger striking for many days is not grounds for making an arrest. 

The facts that the alternative non-detention measures were changed, the how the number qualified for this kind of alternative measures have been substantially reduced, and how that court always uses the preliminary detention option further proves that the attorneys have lost their standing. I am very happy that the people who are not ready to lose their profession have come forward. If an individual loses the legal profession – then we have lost the state.

J.: What difficulties do attorneys face today?

L. M.: An attorney cannot enjoy the equal conditions to the other side (the side of the prosecution); and especially when the court does not perceive the attorney as the equal, with respectable standing from the other side of the proceedings. Many examples are evident:  a prosecutor can park a car at the court building and an attorney cannot, the prosecutor can enter the court building with his/her ID card, the attorney cannot, the prosecutors have their own area in the court where they can prepare for the trails, etc.

You should see the room allocated for attorneys, there are not even chairs. The equality of sides means that they must have the same conditions, as the European Convention prescribes it. The equality must be seen in solving technical problems as well. I am lucky not to face such personally. Nonetheless, the situation facing attorneys new to the profession is more difficult. They must wait for weeks in order to obtain even a copy of a verdict. The prosecutor could solve such a problem with just one phone call; it would even be possible to fax the document.

Attorneys cannot even make copies of documents, which further demonstrate that they are not full stakeholder in the process. Moreover, according to the Criminal Procedural Code of Georgia an attorney does not have access to complete proceedings of the case.  How can I defend my client if I do not know what materials are against or in favor of him/her in the case? The attorney receives the application text at the last moment and finds out only in the middle of the trial why the prosecutor requested arrest for his client.

The preparation process means that trial participants with the proceedings. On a well-known trial of Chechen refugees, I was the attorney. I told the judge that I had not received the application, I had not known the arguments of the prosecutor and I asked time for familiarizing with the materials. The judge suggested viewing them there during the trial but I refused because I would be unable to understand them at one glance of an eye. I asked to write my statement in the court protocol. My point is that there must be a legal culture in order to provide a person, which represents a side in the court with normal work conditions.

There are no written transcripts from court proceedings are not provided. The arguments of the defense are not in any official document. Consequently the principle of equality means that the arguments of both sides must be registered in the official document, discussed by the court and considered upon review as why the court took into account one argument over another the other in reaching its conclusion. The court must prove how it came to the definite decision. The court’s pleadings and the arguments of the side of the prosecution are vague for the attorneys, let alone just ordinary citizens.

J.: Attorneys protest against many things, including the procedure of searching them before visiting the prisoners…

L.M.: Yes, it is true. Previously we had not been searched before going into prison. There is always a chance that some incident might happen but the search process must not be used against honest attorneys. It is surprising that in the meeting room a camera is installed on the place where everyone can see it. Every corner of the room is within the camera’s view. This is a violation of law. Besides, we must leave our bag. We must take papers ourselves. Confidentiality is infringed upon when papers are searched and read - upon in such situation.  Camera must not be there, and even if it is, we do not know when the camera is turned-on.

I would like to recall one story: My client was in hospital, an escort slept beside my client in the same hospital room. When I entered the room, I asked the escort to leave, as I wanted to talk with my client tête-à-tête, but the escort did not do so. I explained to him that he was infringing the law and I would write an appeal about his action. He informed his chief but the chief did not know as well what the law required in this kind of situation. In the end, my client and I had to talk in English to maintain confidentiality.

J.: What do you think about the guidelines? What problems did they cause to the court and attorneys?

L. M.: A framework was officially set up for courts to follow certain guidelines.  Now this legal institution (court) is defending itself by stating that the court must make the decision based on principles and guidelines, and that the court cannot deviate from the guidelines. The conditions are so limited. There is not room for individual discretion, no leeway, as to practice judgment or experience in passing judgments.  Consequently, the attorneys do not have any chance to struggle for the benefits of their clients. .

Moreover, verdicts acquitting the defendants are rarely been passed, especially in recent times. The practice of plea bargaining has proved a total disaster. Even if Irakli Okruashvili, former Prosecutor General and the Minister of Defense of Georgia become a national hero, we must not forget that he had proposed make a plea deal. Attorneys completely depend on the Office of the Prosecutor in the way plea-bargains are made. If you can bribe a prosecutor, the client needs plea-bargaining, and you are able to receive honorarium and to take the case… then everything is clear. You cannot demand from everyone to be entirely devoted to the profession and the principles of civil society, but when I argue about something in the court, I want the judge to perceive it adequately and honestly rule on the case.

J.: How would you evaluate the protest of the attorneys? They just publicized the appeal several days ago and are openly talking about the problems you have mentioned?

L. M.: The protest of the attorneys is taken very seriously all over the world. When an attorney has no legal power left, when the attorney is forced to hunger strike and use other ways of public protest, it means that the justice has died in the country. No more examples are needed here. The profession of the attorney is in a dire situation.  For a few people to have successful careers does not mean that there are no problems.

We have a very good and needed profession. We are in the position to force the government to find ways to improve.  The state is always trying to curb and oppress someone; it is the very nature of the state. The Constitution and acting legislation provides us with the powers to protect the interests and the rights of Georgian citizens. The moment the attorney that had been agreeing with the judge over everything and following the interests of the government takes a half step to freedom. As a result, we will come to understand that we stand alone with our knowledge.  We have no other weapons at our disposal. Our work is not only a private business; it also covers the public interests and well-being of all