Jewels of history...

Check out the recent publication by my own distinguished professor of History at UCLA, Scholar of the Month on this blog, Prof. Joan Waugh on Ulysses S. Grant. Like all the deeply memorable lectures of Professor Waugh that I still remember years past and all her scholarship, surely, this book will illuminate much for you about the U.S. Civil War and the American hero... I am sure, it will righteously join the jewels of history... I can't wait to read this book for the holidays... Congratulations to Professor Waugh!

Voice from the trenches...

Took a minute to put out my voice from the trenches... As a defense attorney either in trial or at threshold of trial, I consider myself a foot soldier at war with the criminal justice system. What is the story of the trial lawyer? A psychodrama, a journey, self-revelation, and constant initiation, re-initiation into the inner workings of the criminal justice system... What do others not going through this process, know?! What do they know... Only those in the shoes of the soldier know exactly what it feels like there, in the army... When you are seated next to a human being, who has put his trust, his hopes in you... who understands you with a simple eye contact... A person who has nobody else to like him in the entire system, but you... Someone who is unpopular, who is distrusted, disliked, feared and considered a 'criminal'. When you are seated next to this person who has relied on you, and how your heart sinks at every piece of inadmissible evidence introduced to the jury over your objection, every piece of undiscovered material introduced over your objection, when you are denied a sidebar, not allowed to voice your objections, and succumbed into submission to 'complete and absolute' authority of court that is impermissibly prejudiced and biased against your client... How your face turns red and you are on the verge of fury and a heart attack when you are not allowed to ask a single queston to the jury during jury selection or 'de-selection'. When you are threatened with contempt of court if you start doing effective representation on behalf of your client... This is the process that is not to be described, or written, but to be lived through day in and day out... It takes someone to 'stand up and fight' as a soldier. This is not about intellectual discussions over a cup of coffee, or writing volumes of books about how to be a trial lawyer. This is simply being in the army. Only those who have gone there and have been foot soldiers know exactly how it is like out there. It is a war where you may win the battle but lose the war because if you win one trial, you are back to square one, and fight for another, and another, and another, endlessly, till the end. There is really no winning at this war, but only fighting for what it is worth... The criminal justice system will never change its institutional law enforcement bias, prejudice against the criminal defendant and custom to wash away, dilute, mischaracterize, misinterpret the rights afforded the accused...

Many people do not understand the role of the defense attorney... We are not defending the 'criminals'. We are there to secure the rights and liberties afforded by laws to the entire society... If some in this society choose not to exercise them, or decide to take them lightly, disregard them or worse, deprive others of them, that does not mean that we will put down our weapons and cease fighting for those rights!

And if those who get the opportunity and power to use criminal laws to subjugate, oppress, destabilize and disable minorities and those without voice-- those at the lower economic rungs of the society-- they will have to account for constant struggle by us! I do not walk alone. I have followed many and in time others will join me...

Law double-edged sword...

There are times when I get the need to escape from the everyday parade, uproar and tumult and really think about what is happening around me. These are times when I step back into silent contemplation and musing, complete seclusion. I just thought, how little and powerless we are as individuals against the machinery that is driving the world. The so-called 'law' that we lawyers have learned to revere and analyze, is in fact a double-edged sword. Yes, it can empower the weak, the oppressed, those without power... But increasingly and devastatingly, it is a tool in the hands of the powerful against very those it was designed to protect... It is a tool to disempower, disenfranchise, destroy the will of ordinary people. Injustice through legal channels and under the guise of the law is commonplace. The Bill of Rights is in the gutter. I speak to older lawyers who tell me, 'We won't be a free society in fifty more years.' Someone in fact said, 'Are we a free society today?!' Those in power have the upper hand over the U.S. Constitution, its interpretation, its application, its very existence. The liberal institutions upon which this country has been built and has survived, now are cast into permanent oblivion. Because of economic crisis, people only care about the daily sustenance, not the rights they once enjoyed... But they do not realize that economic-social rights are part of their rights they have lost. Corruption, impunity, complete lack of accountability are commonplace. Police harrassing, intimidating, threatening and beating up people in the streets. No one seems to care. No one seems to talk about these things. You have no right to privacy, no right to speak your mind, no right to walk in the streets freely and fearlessly... The monster is driving the world... and there is no end to be seen.

The law is being used very wittingly and cunningly by those in power against the very those it was designed to protect.

President Obama is trying hard to work with those who do not share his values. Meanwhile, his own values-- values that earned him his popularity and victory-- are dissolving. He is not standing by his promises to unravel the damage brought upon this country by the monster... The promise was exactly that: to uphold the values he was espousing but is now slowly eschewing... Did American progressivism die with Ted Kennedy?! That is the question.

Well said...

The right to walk the streets, or to meet publicly with one’s friends for a noble purpose or for no purpose at all—and to do so whenever one pleases—is an integral component of life in a free and ordered society… This right is rooted in the First Amendment’s protection of freedom of expression and association, as well as… the Fifth Amendment’s protection of fundamental liberty interests under the doctrine of substantive due process.

Waters v. Barry (D.D.C.1989) 711 F. Supp. 1125.

The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct... The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right to assembly because its exercise may be 'annoying' to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. And such a prohibition, in addition, contains an obvious invitation to discriminatory enforcement against those whose association together is 'annoying' because their ideas, their lifestyle, or their physical appearance is resented by the majority of the fellow citizens.

Coates v. City of Cincinnati (1971) 402 U.S. 611.

[Those who] can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

Benjamin Franklin

In Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.

James Madison

Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation.
James Madison

First Amendment rights, continued

Justice Brennan (Roberts v. Jaycees, 468 U.S. 609):

Our decisions have referred to constitutionally protected "freedom of association" in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty (italics mine). In another set of decisions, the Court has recognized the right to associate for the purpose of engaging in those activities protected by the First Amendment-- speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties (italics mine).

The intrinsic and instrumental features of constitutionally protected association may, of course, coincide.

This distinction is much forgotten in constitutional analysis today. It is because the so-called instrumental features are tied to much recognized rights enunciated in the letter of the First Amendment itself. But I think, the intrinsic and fundamental right to freedom of association is of much substantive and deeper value...

First Amendment rights and criminal defendant

I was appointed to handle several cases involving charges of alleged violation of a court order. In these cases the superior court issued a permanent injunction against a specific gang and its members, ordering it to refrain from certain activities within a specific circumscribed zone in Los Angeles. Under the umbrella of abating a public nuisance-- gang's activities constituting a substantial nuisance to the public [sic utere tuo ut alienum non laedes: one must so use his rights as not to infringe on the rights of others]-- the court ordered among other things the following:

1. Defendant [name of the gang], its members, agents, servants, employees, and all persons acting under, in concert with, for the benefit of, at the direction of, or in association with them or any of them, are enjoined and restrained from engaging in or performing directly or indirectly, any of the following activities in the
Safety Zone:
a. Do Not Associate: Driving, standing, sitting, walking, gathering or appearing, anywhere in public view or any place accessible to the public, with any known member of the gang, but not including: 1) when all individuals are inside a school attending class or on school business, 2) when all individuals are inside a church, and 3) when all individuals are inside a vehicle in transit on the 10 Freeway; provided however that this prohibition against associating shall apply to all claims of travel to or from any of those locations.

Most of my clients charged with violation of this court order were arrested for this provision, allegedly walking in the Safety Zone with allegedly known gang members. Moreover, they were also served with this injunction at some point in time in the streets as part of the enforcement of this order.

Immediate questions that arise for the concerned are the following: 1) whether this injunction on its face is constitutional and 2) whether as it is applied to my clients on the facts of each case is constitutional.

1) Is this a facially constitutional order?
The California Supreme Court has held in People v. Acuna, et al. (1997) 14 Cal.4th 1090 with respect to another similar gang injunction that a) gang activity constitutes a public nuisance as it is defined by legislature b) gang conduct is not protected by the First Amendment c) overbreadth and vagueness challenges are determined in the context of the prohibited activity.

A very badly written case with poor reasoning. The entire case is driven by the evidence of what are the horrors of gang activity in a neighborhood. As a general proposition most would agree that criminal activity in gross violation of other people's human rights is not protected by the First Amendment. But that is a serious generality. The more important and thoughful task is to look at the order on its face and ask, 'Does this order hypothetically infringe upon someone's Constitutional rights?' Sure it does. It is overbroad because it may be applied to those who are not engaged in gang activity and it may infringe upon someone's right to peaceful assembly and freedom of speech. Remember, the First Amendment protects not only speech/words, but also expressive and associational activity. It is also vague because an individual would have to take Herculean efforts to decipher what is allowed and what is prohibited. Where is the Safety Zone? How knowledge of gang membership is imputed to an individual? Walking in the neighborhood where one lives entails associating with neighbors, saying hello and gathering for an evening retreat and passtime.

An important problem with this decision is the following. Basically it implies that a criminal defendant should not be protected by the First Amendment. If gang activity is a criminal offense then gang membership does not and should not receive First Amendment protection. But that goes against the very fundamentals of our U.S. Constitution. The accused enjoys all of the rights that others enjoy, because 1) he is innocent until proven guilty, 2) often a crime in the eyes of the legislature is civil disobedience in the eyes of another. That is the reason that enemy combatants at Guantanamo should have had the protection of the First Amendment. Unless speech gets to the level of fighting words or incites imminent lawless action by its very utterance, it is protected by the First Amendment. Even there the jurisprudence should be revisited.

In this case, a blanket statement that gangs do not get the protections of the First Amendment is so much against the substance of the U.S. Constitution that it really horrifies one. Someone who is in a gang does not have the right to peacefully assemble with his neighbors for expressive activity? That is basically what the case does. Upholding the constitutionality of this injunction has that effect. Obviously, a gang member robbing, burglarizing, murdering or selling drugs is not involved in protected First Amendment activity. But this injunction has a different goal. It is preventative and goes out of its way to enjoin any sort of activity by known gang members. But in that effort, it infringes upon serious constitutionally-protected activity, not only of known gang members but also of others who are not in this gang.

2) Related question is whether it is unconstitutional as applied to my clients. Answering the first question above helps to answer the second. But it is important to note the dangers of injunctions. As it was noted in Madsen v. Women's Health Center, 512 U.S. 753 by the U.S. Supreme Court:
"Injunctions... are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances."

In that case, the Court used intermediate level of scrutiny to uphold parts and strike some parts of an injunction prohibiting activity of anti-abortion protesters around an abortion clinic. The Court said that using the lower level of scrutiny (time,place,manner regulations to be narrowly tailored to serve a significant governmental interest) was not going to be appropriate for an injunction in light of the constituent dangers. The court instead said, "when evaluating a content-neutral injunction, we think that our standard time, place, manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." 512 U.S. 753.

But this was a case where under constitutional analysis it was admitted that 1) the government was regulating not the content of the speech but conduct 2) as a result of regulation of conduct protected speech was also curcimscribed. The threshold question is always whether the activity is protected by the First Amendment. In the Madsen it was.

In Acuna, the California Supreme Court has decided that gang association in public has no protected First Amendment ingredients in the first place. That is the fundamental problem that I see with these injunctions and how they are applied. Depriving the gang member of the First Amendment protection without a specific case-by-case analysis is simply unacceptable to me. What if the gang member is gathering with his associates and says 'Fuck the police', 'let us burn the flag', 'let us go to the City Hall and sit on the stairs' etc. etc. etc. What if their activity falls short of any 'criminal' action against either the public or police. It is simply expressive in nature. That is definitely and absolutely protected by the First Amendment.

As far as the application to several of my clients: this injunction gives absolute discretion to the gang unit of the LAPD in deciding who is subject to it, who should be served with it, and who is in violation of it. My clients have been arrested for innocuous behavior that cannot even come close to criminal activity. For example, driving to El Polo Loco eat, or walking home with friends after a basketball game, or having a ride home with a friend.

The injunction permits the police to arrest anyone who is associating with known to police gang members. Its wording does not even contemplate any sort of criminal behavior.

My question is this: does the societal interest in abating gang activity/nuisance on balance warrant such flagrant violation of one's Constitutional liberties?! Isn't this a slippery slope leading us towards the 'police state' and diminution/dissolution of the U.S. Constitution to prerogatives of the law enforcement?!

Not enough said!

Prof. Gates' arrest did not come as a huge surprise to me (unfortunately)... 99% of my clients (criminal defendants) are either black or Hispanic. I know very well how so many white police officers treat my clients out in the streets. But somehow Obama's disappointed remark about how 'stupid' the police were, raised furor, forcing him to explain his comment away... One more example of how racially divided our country is... Is racial profiling just an expression or reality?! I am quite upset that they even dare to force Obama to take back what he says when he does not even say enough, in light of his own race and political posture... As much as he tries to unify this country-- an awesome and courageous promise-- I doubt if some people even appreciate it or want to embrace. Believe me, they are intransigent.. It is a wall that you can break yourself on before trying to break it.

As a side note, this incident also shows how fragile and insecure is Obama's position at this time. Did Bush ever have to explain away his comments, as stupid and outrageous as they were, or even apologize for anything? Why would Obama, the first African-American President, be treated differently?!

For more

Click here for the story

News flash

The European Court of Human Rights has decided that the case of Georgia v. Russia is admissible to be heard in that Court. Press release.

This was a very important step forward because the ECHR declares many applications inadmissible. Of course, this was only a threshold to cross and as the press release indicates, in no way pre-judges the merits of the case. But the Court basically disagreed with the Russian Government's arguments that these allegations were unsubstantiated.

I do not have in my hands the documents and materials submitted by the Georgian side, but when I heard the hearing in April (personally), my instincts said to me that the case could be found inadmissible. The Georgian side was not convincing at this hearing and the Russian side made some very compelling arguments.

Politics aside, it is going to be very interesting to see how legally the Court will decide this case on the merits. But before it even gets to the legal issues, there must be strong evidence presented by the Georgian side because their claims are pretty serious. International law and especially human rights law should not be held hostage to politics. That is the hope.

Stay tuned.

Green [R]evolution in Iran

As I was watching the images captured by camera and listening to Amanpour's reflections on the recent elections on Iran, the idea came about of a Green Revolution and its parallel to the Orange Revolution in Ukraine... Similarities were pretty stark. Interestingly, while I felt this independently, I was not the only one. Other commentators had the same feeling and parallel visions... see here

It came as a big surprise to many in the West that Iran is not united, as it seemed from afar. But that is a mistake we have always made in our assumptions, miscalculations and fears. That was the mistake we made after the 9/11, viewing all Arabs united, all Islamists united: against the United States. The naivete of that view was to dissolve pretty quickly in the ensuing years. And now it is with Iran. Iran like many other Islamic countries is far from united. This division only now came to the surface with greater force. Obviously, the elections are a perfect opportunity to express disenchantment with Ahmadinejad's extremist policies, views and statements. But I really do not know if political commentators are correct that there is political maturity in Iran currently. While there is grassroots movement and some political culture geared towards democratic principles, the existence of violence suggests lack of maturity. Disobedience and protests that result in violence and shedding of blood that are not necessarily caused by the militia, but simply by people getting angry with each other, is not the modern democratic way as we envision it here. In the United States the last elections were pretty emotional and dramatic, but there was no blood shed and the whole atmosphere was not dangerous. Watching the images on the screen from Iran, my blood chilled in my veins: people yelling and screaming, walking with rocks, angry...

Is this because of the fear on part of Moussavi's supporters that there will be a violent crackdown by the government that has bestowed victory (fraudulently or otherwise) on Ahmadinejad? Is there any expectation that the government backed by Khomeini will endure this opposition? Will the opposition get more organised and more level-handed? It remains only to be seen. At this point there is a lot of support for Ahmadinejad. There was a lot of support in Ukraine for Yanukovich. But it is quite reassuring to see Muslim women walking in the streets, demanding rights, respect and opportunity to be heard! If nothing else, this development will prepare a stage for something else... The very fact that people dare to express their discontent and voice against the current government is quite a big step forward.


Democracy gets developed through stages, oftentimes unseen to the ordinary eye. It all begins from the bottom, in the mindsets of the people, and slowly stage by stage, step by step, it develops from theory into real practice... Obstacles to it make the urge stronger and greater... That is why, it occurred to me, that this movement in Iran is rather evolutionary, than revolutionary. On the surface, this change seems revolutionary. But fundamentally the process of democratic growth is never revolutionary and more slow and evolutionary. Think about it, how many years did it take for the United States to become what it is?

The Iranian government will not be able to contain these forces for long... Either it will have to adjust and finetune itself to these demands, or else it will collapse, just like the Soviet Union.

Somalia in rage

The radical Islamists in trouble-ridden Somalia have undertaken to further agonize and terrorize more moderate religious groups. Beginning from heinous desecration of graves, they are now bombing mosques where the opposing groups are gathering for prayer. Violence has been the story of the day for already many years in Somalia, a country separated into many tribes, groups, and 'states', whose interests do not coincide. Unfortunately, most of these interests are not based on any rational thinking. Much of it is simply violence for the sake of violence. Many causes have been pointed out by scholars for this crisis: lack of centralized government, economic backwardness and poverty, secessionism, radical Islam. It seems, solutions have been identified and there have been some efforts made towards them. But there is no political will and/or political culture to sustain any progress towards these solutions. Stability in these types of countries unfortunately has been associated with dictatorship. For example, Somalia did much better under Siad Barre and Iraq was more stable under Saddam Hussein... Of course, 'better' is a very relative term. Peace under fear does not last long.

At least 13 people died in a shooting at a mosque on Wednesday. Today BBC reported that in another suicide car bomb attack Somalia's minister died along with at least 10 others. here

For a story

photo credit here

News flash

One more example of how the Obama Administration is not any different from Bush's. The Administration has rejected the release of Chinese Uighurs, already cleared of charges but still detained at Guantanamo Bay, on the U.S. soil. Reminder, that these people are already cleared and are innocent of charges of plotting against the U.S. government. Yet, justice does not extend to aliens.

See here

Change is on the way?...

Promises for fundamental change in the United States policies and practice, specifically from those of Bush Administration, filled our hearts and minds not long ago... Inspired and excited we went to the polls...

The wisdom of the saying "Do not promise if you cannot deliver," has come back to haunt. President Obama has reneged on his promise to uphold long-held principles of human rights and has refused even to call the Armenian genocide by its name. (see here)

Has also not stood firm in his pledge to close the Guantanamo. By the very fact that he is supporting military commissions, he is following deeply-flawed policies of Bush. (see here)

Does change come half-way?

Celebrating 20th Anniversary

Yesterday we gathered at Glendale Hilton in celebration of the 20th Anniversary of the Armenian Bar Association. The association was founded in 1989 and has been a great vehicle for professional developement and enhancement of the Armenian bar.

It was nice to see how many non-Armenian members of the California bar also gathered with Armenians to celebrate this special event. The Hrant Dink Freedom Award was presented to Raffi K. Hovannisian, a great individual who has incessantly fought for freedom of Armenia and preservation of Armenian identity and heritage. He made an inspiring and soul-startling speech yesterday. "Freedom and fear are mutually exclusive. Speak the truth to power," were his words.

With a tumultous and tragic past, Armenians in America are not losing sight of the opportunities ahead, their deep responsibilities to the world and the Armenian community, and the great fortunes bestowed on them by the United States. They also are not losing hope that one day, some day, the truth will finally triumph and history will be reclaimed with respect to the Armenian genocide.

The past makes Armenians determined that they will not allow the same happen in the future. 'No more' and 'Enough is enough' have been the slogans behind the Armenian support and assistance for Nagorno Karabakh.

There come times in the history of nations when the fight is for life or death and survival is at issue. Armenians throughout their history constantly faced such moments but their survival, clenched with blood and in agony, inspired them to go on and prosper. Even today Armenians cling very closely to their identity fearful to lose it. Their grip has become tighter and tighter with each blow of history.


Perhaps the Armenian will to survive and commitment to truth will inspire other nations in the world to come together for peace and prosperity for all.

Arthur Meschian "All of it for you."

My memorable trip to the European Court of Human Rights: Georgia v. Russia

"On March 26, 2007 Georgia brought an application against Russia under Article 33 (Inter-State cases) of the European Convention on Human Rights. The case concerns the alleged harassment of the Georgian immigrant population in Russia following the arrest in Tbilisi on September 27 2006 of four Russian service personnel on suspicion of espionage against Georgia.
11 Georgian nationals were also arrested on the same charges. Georgia maintains that the reaction of the Russian authorities to the incident in September 2006 amounted to an administrative practice of the official authorities giving rise to specific and continuing breaches of the European Convention on Human Rights and its Protocols. These breaches are said to derive, in particular, from widespread arrests and detention of Georgians in Russia creating a generalized threat to security of the person and multiple, arbitrary interferences with the right to liberty. The Georgian Government also complains of the conditions in which at least 2,380 Georgians had been detained. They assert that the collective expulsion of Georgians from Russia involved a systematic and arbitrary interference with these persons’ legitimate right to remain in Russia." (cited from the website of ECHR)

It was a quiet, warm and sunny afternoon when our plane from Paris landed in Entzheim Airport of Strasbourg. After the busy and lively airport of Charles de Gaulle in Paris the airport in Strasbourg was unusually quiet. You could hardly see a living soul. For a moment I thought we landed in the wrong town. How could the European Institutions, including the Court of Human Rights be situated in such a quiet and small city?! But I approached the information desk, asked for the map of Strasbourg and took a breath of relief seeing the European Parliament, Council of Europe and the ECHR on the map. The city itself was very old and extremely cute, more German than French. I saw an old German village with a church in the outskirts. It made me wonder about the history of the city. Walking in the streets I remembered Tallin, the capital city of Estonia, where I visited with my parents as a child. I really loved it… People were much more simple and friendly than in Paris and were not as upset with the fact that I did not speak French. In Paris I was quite distraught with some French who were rude to me because I spoke English and sounded like an American. (But this time I was proud to be an American because of Obama.)

On April 16, 2009 the ECHR Chamber held a hearing on admissibility of the case brought by Georgia against Russia. I got interested about this case in my conversations with a good friend and mentor, John Cleary, a distinguished criminal defense attorney from San Diego, who is currently teaching at Moscow State University. I was glad he gave me the idea. So, there I was in front of the ECHR building on April 16. Immediately I met Russian students and experts of international law rounding up the building. It was quite an event for us. There were not that many Georgians though, surprisingly. Then we were invited into the Chamber of ECHR. Unfortunately, we were not allowed to take pictures or video record the hearing until after it was all over. I was astonished to see very young lawyers among the representatives from both countries. In fact, on the Georgian side there were only 4 people seated at the table, 3 very young female attorneys, and one young man, not an attorney. On the Russian side, it was more solid. There was an older female attorney, 2 older male attorneys, and 4 younger attorneys. It seemed, the Russian side took this case more seriously by bringing more experienced attorneys to the table. Indeed, when the hearing began I liked the arguments and presentation of the Russian attorney, Georgy Matyushkin, much more than the Georgian attorney’s, Tina Burjaliani. In comparison with attorney representatives of the parties most of the visiting experts in the Chamber were older and intimidating. They were even talking during the hearing to my great surprise when we were all completely shut down from the whole atmosphere of formality and solemnity.

It was quite an experience. We all sat down, the bell rang and the attendant announced ‘the Court’. We all stood up and there came the judges:
Peer Lorenzen (Denmark), President
Rait Maruste (Estonia)
Karel Jungwiert (Czech Republic)
Anatoly Kovler (Russia)
Renate Jaeger (Germany)
Mark Villiger (Liechtenstein)
Nona Tsotsoria (Georgia)
Mirjana Trajkovska (Macedonia)
Zdravka Kalaydjieva (Bulgaria)
Isabelle Berro-Lefevre (Monaco)
I noticed the equal division of female and male judges and liked it. There was a judge from Russia and a judge from Georgia to ensure greatest degree of impartiality. The selection of judges is guided by the Articles of the Convention. First spoke the Respondent State, Russian attorney Matyushkin. I really liked his presentation. He spoke in Russian. He was very professional, made his arguments point by point and was unemotional. First, he argued that the case is inadmissible at the ECHR. As a background information, the ECHR first has to decide whether a case is even admissible in its court. The international courts generally are complementary to national courts and if there is an adequate remedy for applicants in the state courts where the events occurred, then the court does not hear that case. The principle of complementarity is well-known also at the International Criminal Court. The argument therefore really revolves around whether the party suing exhausted his remedies in the national courts. This is called the ‘exhaustion’ doctrine. The Russian side (as well as the Georgian side later) cited cases, including Denmark et al v. Greece, Ireland v. UK, Cyprus v. Turkey. Mr. Matyushkin very convincingly and strongly presented arguments which showed that the Georgian individuals complaining of mistreatment and unlawful detention never appealed the decision to expel them from Russia. Again as a background information, allegedly in the fall of 2006 Russian authorities detained, harassed and expelled hundreds of Georgian immigrants residing in Russia. Also allegedly these individuals were detained for lengthy periods of time without the right of counsel, without basic needs and then were deported to Georgia without a formal hearing.

The Russian side argued that the case is inadmissible first because these individuals never exhausted remedies available to them.
But then the attorney shifted gears and went straight into the merits of the case and brought illustrations and arguments to show that the case was frivolous in the first place. He focused much on the state of the evidence and how Georgia was going to prove that these violations occurred. It argued that many of the ‘stories’ in the briefs were false and fraudulent and not based on reality. He was able to prop his arguments by real examples. He also made a distinction of illegal aliens and lawful citizens of Russia of Georgian ethnicity. He focused on the fact that deportation of illegal aliens according to the current law in Russia is not indicative of discrimination of that community when many of the same community happily reside in Russia. He brought some numbers as to the rate of immigration from Georgia to Russia during this time. How the numbers have even increased in this period of time. He said, if the Russian authorities were targeting Georgian ethnic minority, the numbers would not go up, but would go down. Basically, Russian attorney specifically wanted to dispel the notion that there was specific discriminatory motive behind this expulsion. Since these people were expelled and there is proof of that, Russian side could not deny it. But the argument that these individuals were bound to be expelled from Russia according to the laws of Russia went against any argument that the Russian side was acting unlawfully. (It occurred to me that maybe the Russian side should think about changing some of its immigration laws in response to this case. Because if their expulsion and deportation proceedings are not in line with the rest of Europe then it is wrought with problems not only from the standpoint of human rights but simply from the standpoint of international relations. In fact, I think Matyushkin noted that their immigration laws are in flux and changing constantly in response to these complaints. Immigration is an issue not only in America but also in Russia and the rest of Europe.)

But overall the Russian attorney’s argument was very convincing, assertive and professional. He had very good knowledge of the law of ECHR, the Convention on Human Rights, and the facts of the case, as well as arguments by the Georgian side. He was able to show much of the weakness of the cases of the Georgian side because he was able to show that many of these stories are not supported by a valid source and are suspicious. He also challenged the Georgian side to come up with real evidence to support their allegations. He ended with commitment of Russia to continue long-term neighborly relations with Georgia. Interestingly he did not personalize any of his arguments and remained very dispassionate and cool-headed.

Then spoke the Georgian attorney, Tina Burjaliani, a young female attorney, First Deputy Minister of Justice. I was quite surprised that such a young attorney would be holding such a serious post. She was quite a big contrast from Matyushkin. She started out on a very passionate note, angrily and very dramatically. In contrast to Matyushkin, this case was very personal to her. It sounded like Russia committed the Jewish Holocaust and we were in Nuremberg. She spoke in English and made some grammatical errors. In her place I would have spoken in my native language to avoid such mistakes. I liked her deference to the Court. She called the judges several times ‘Your Excellences’. While Matyushkin was very detached and never called the judges other than ‘the Court.’

But her argument was pretty weak. She made correct statements of the law but could not bring strong arguments on her side. She said in order for a case to be admissible in the Court, Georgia must show 1) administrative practice by Respondent State in violation of the Convention 2) Accessible and efficient remedies that were exhausted. So, her argument was structured in two branches: 1) she first argued that in this case the ‘Exhaustion doctrine’ was not a bar to admissibility because of the presence of administrative practice ((a) repetition of acts and (b) official tolerance,) 2) if it is found applicable, there was no accessible remedy to the Georgians expelled from Russia. Throughout her speech she cited the Human Rights Watch and a couple of individuals but did not sound like a lawyer. We, lawyers, think about EVIDENCE, PROOF in court of law. We think about what is the source of information behind a statement. For example, if the source of information for the statements by Human Rights Watch was the Georgian government itself, then what credibility could they have. She never bothered to talk about real specific facts, and proof. She said confidently ‘We will bring forth to the court evidence of our allegations later,’ but she was not able to convincingly oppose the arguments of Russia that these stories are exaggerated and false. Most importantly, even though she seemed to know the caselaw on the subject of the ‘Exhaustion’ and Admissibility, she could not bring her arguments to a strong conclusion and convince the Court that indeed this case should be heard here. For a moment I wished to be in her place. On the other hand, I did not see any shortcomings in the arguments of the Russian attorney. In her place I would have structured my arguments much differently. It seems, she was just making a written up speech, without having listened to the arguments of the other side. She was just reading from a script. I hate that about lawyers. That is why in my trials I do not write down scripts. I only write points to follow them and not to forget them. She even called her own argument ‘my speech’. That was quite sad. But of course, given she was so young, she was able to project some degree of confidence and not be intimidated by the numbers on the other side. At least she was able to remember the cases and cite them in her argument. She focused also on the fact that in inter-state applications ‘Exhaustion’ doctrine was not a bar to admissibility when administrative practice is shown/proven, citing the case of Denmark v. Turkey.

Most importantly, she was too dramatic in her tone. You lose your credibility when you are not realistic about your case. I have done that in one of my trials and lost my credibility with jurors. Once in a DUI case I finished my closing argument with global warming and polar bears, very dramatically. Jurors were looking at me as if I was out of my mind: what did a DUI case have anything to do with global warming? I only tried to connect my client’s case to the universe, but it was a stretch. I later laughed at myself along with District Attorneys. Now this attorney was at the ECHR and she basically tried to talk about this case as if this was seriously the Armenian genocide and she was the Armenian attorney against Turkey. Even if these allegations are true, they cannot arise to the level to warrant such a dramatic posture. Perhaps her lack of experience played a role.

Then judges were given opportunity to ask questions. First the Russian judge asked a question to both parties. He asked the Russian side ‘Do you have any numbers as to how many Georgians currently reside in Russia?’ The Russian side came back saying, ‘we do not keep such numbers and we have no way of knowing that,’ solidifying their argument that they had no intention of targeting certain ethnicities for expulsion. That was pretty smart. Notably, the Judge asked the Georgian side for some examples, dates, places in support of their allegations. This was directly in response to the complaint of Mr. Matyushkin that the Georgian side is not responding to their challenges for proof. Mr. Matyushkin made a statement during his presentation that while they constantly take the information, verify their accuracy and discredit it, the Georgian side to this day has not responded with any credible information to support their allegations. The Georgian attorney, to my frustration, did not respond to the question of the Judge.

One thing was really sad. Back when I was a child, no one would have believed that a case like this would end up in an International Tribunal. The long-time relations and neighborhood seemed to have evaporated. The relations between the two countries are getting worse and worse. Russia at least has expressed its commitment at this hearing as well as in other political pronouncements to continue long-term friendship with countries of former Soviet Union. However, Georgia does not seem to be committed to it at all. Not only at this hearing but as a general matter currently Georgia is not making the same commitment not only with respect to Russia, but other former republics. Georgian government has been unfriendly with Armenia, for example, throughout these years of post-Communist development and Armenia is the next-door neighbor. In fact, ethnic minorities that reside in Georgia are treated as second-rate citizens and are constantly discriminated. There is a small Armenian community residing in Georgia that is shrinking because they all feel quite uncertain about their future. If Georgia is so concerned about the treatment of its ethnic minorities in Russia, it should also concern itself about how it is treating other minorities within its own borders. So it is quite ironic that today it found itself at the ECHR. On the other hand, Russia should also be careful. Since it joined the Council of Europe, the ECHR has been flooded with cases against Russia, first with respect to Chechnya not with Georgia.

It will be interesting to see if the Court finds the case admissible and what will happen ultimately.
To me this case is revolving in the background of much political tempest and fire. At the end, it is all about world politics. Human rights-- their creation, interpretation, application and enforcement-- are never insulated from world politics and will never be.

(For Webcast of the hearing see here).

Recent publications

For students of international law and those interested two good publications to look at:

International Criminal Law Review by Michael Bohlander

Jurisprudence of the International Criminal Courts and the European Court of Human Rights by Vladimir Tochilovsky

Law School Hypo

Sometimes in practice we come across situations and cases that really remind me of my law school hypos. Here is one:

Police officers are driving down the street patrolling the neighborhood and see a brown Honda Accord exiting a parking lot. As they later write in their report, because of many stolen Hondas in the surrounding area, they run the vehicle license plate for any pending warrants. The license plate search reveals indeed a pending warrant for the owner. So, they stop the vehicle, ask the driver for ID. While talking to the driver, they also ask for ID from the two passengers for no stated reason. Sure enough one of the passengers also apparently had three outstanding warrants. So, both the driver and the passenger are transported to jail and obviously arrested for warrants. Once they are placed in the holding cell to be booked, an officer observs the driver push an item towards a far corner of the holding cell with her foot. The officer recovers the item which later is confirmed to be rock cocaine. The other defendant (the passenger) is searched incident to her arrest and is found to be carrying three small pieces of rock cocaine hidden in the waistband.

Then law school professor would simply ask to discuss. My concern confronting this fact pattern was whether there was any Fourth Amendment violation.

Possible answer: Yes.

Rationale:
The fundamental principle of the Fourth Amendment is that the individual has reasonable expectation of privacy. Katz. v. U.S. This means, freedom from unreasonable searches and seizures. When the police stop a vehicle, by definition the driver is not free to leave. This is a temporary detention within the meaning of the Fourth Amendment and must comply with the standard laid down in Terry v. Ohio. See Whren v. U.S. In particular, when officers detain in relation to crime and investigation, they must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." U.S. v. Cortez.

"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in the light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." People v. Souza.

The problem I have with the facts is that there was no particularized and objective basis to believe that the vehicle of the defendant was stolen. The officers wrote in the report in a very general statement that they searched the license plate of the vehicle only because there were a lot of stolen Hondas in that area and that vehicle was a Honda. The very fact that they search the license plate of that vehicle without any articulable suspicion is an intrusion into privacy of that individual. On the other hand, the U.S. Supreme Court has in fact said in one of the cases that you have less expectation of privacy in your car than at home for understandable reasons. But things must be reasonable. Do you expect the police to run your license plate every time they see you driving in the streets?

So, I believe an argument can be made that even though the driver had pending warrants, the stop is not lawful because the officers had no reason to check the license plate of this particular car.

If so, the entire arrest is no longer lawful because of the unlawful detention.

Second, even if they are asking for ID of the driver, what causes them to ask for the ID of the passengers. You can ask for the Identification of driver if stopped for a valid purpose, including traffic stops. But I see no reason to ask also for the ID of the passengers. So, at this point the passenger has the right to challenge the lawfulness of her detention too. What particularized suspicion did officers have when asked for ID from passengers? Are you expecting the police to ask for your ID when you are having a ride in a friend's car? Just think about it.

A lot of these things are instinctively wrong. It requires case by case analysis. But coerciveness of these encounters is apparent. Police exerting authority over people in ways that our Constitution should and cannot endure. That is the whole purpose of the rights. They are not just symbolic written words. They should really function in real life to protect the individual from the police. It is not about the form, but substance. If something is wrong, it cannot be made right. Unfortunately, individuals lose the ability to exercise their rights because these things get approved in courts. They also get used to constant submission to authority of police and cannot imagine anything else. A lot of times, I get blank faces from my clients when I tell them about their rights under the Fourth Amendment, Fifth Amendment, Sixth Amendment. They lose their appreciation of these rights because in the streets the rules are quite different... It is like Ivy Tower and jungles.

The U.S. Supreme Court made these rules for all 'streets', no exceptions!

Happy International Women's Day!

It is very interesting that this day is not celebrated as a national holiday in the United States. It seems paradoxical that in a country with strong liberal ideals, the International Women's Day does not receive such attention. Well, perhaps it is not that paradoxical. After all, we still have a high degree of sexism. I am still gasping for air after watching what happened to Hillary Clinton under the attacks of virulent sexism. For us, women lawyers, it is still a challenge to practice in courts housed by males as judges and lawyers. Women are still treated paternalistically and for some reason there is still the expectation that they have achieved something not through their brain, but through 'bed' (crudely speaking). Quite too often they are not treated seriously and when they become aggressive, they are punished. Do not tell me anything new, I have been punished many times and many ways. And yes, I have refused to achieve goals through 'bed', believe it or not. That is why, I am a solo practitioner now. Unfortunately, some women have the image of Playboy girls and that sets the expectations of men about everyone else. In some professions such as legal, 'Playboy girl' image is simply out of place. I am sorry, that is the truth. You do not have to lose your femininity by being a lawyer, but there is a certain line...

Human nature does not change from country to country. But it is really ironic that Russia has been celebrating this Day since the beginning of the 20th century, when socialism took its roots there. In fact, this day really is an outspring of socialism and the first major parade on this day happened in Russia. Russia is a country with no liberal democratic institutions and is currently being ruled by a 'dictator', correct? Yet, women do get flowers on this day and do get a national appreciation day. Of course, that is not to say that women have achieved more in Russia. By no means. Yet, symbolism matters and no woman would shy away from recognition and flowers. I call that 'culture.'

Unfortunately, because of the 'culture' in the United States, I always had some difficulties buying flowers for my own professors. For some reason, I felt awkward and afraid that the symbolic gesture would not be acceptable... True enough, sometimes it was not. Very sad. So I stopped buying flowers except for my own Mother.

Happy International Women's Day!

Watch the video on the history behind the Day

Click here for Tamara Gverdtsiteli's Dedication to Women

Georgia v. Russia

ECHR is hearing the case brought by Georgia against the Russian Federation on April 16, 2009 on various grounds under the European Convention on Human Rights. see here.

The case stems from a specific set of events in 2006-2007 but is highly political in nature given the tense relationship between the two countries, manifested more and more in recent military showdowns. Is international law becoming a tool for political vengeance or is it really the only avenue for justice for minority rights? A smaller nation seeking justice against a bigger and stronger nation? But in world politics is there really such a concept of 'smaller' nation when there are multiple sets of interdependent and highly sophisticated alliances? Is the old flawed maxim 'might is right' relevant when 'might' is measured in many different conflicting ways, such as military, strength of liberal institutions, economy, etc. etc. etc. But is 'just is right' maxim as flawed given the defects and imperfections in administration of justice in national courts as well as international ones. When justice is sought on the international stage draped by heavy curtains of politics enmeshed in violent history and omnipresent nationalism, does prevalence of that 'justice' bring upon desirable results? ... Nothing is perfect and yet true justice demands purity and absolute objectivity. When 'victim' is screaming in pain, the rights of the perpetrator sink unnoticed and suffer incredibly along the way... Balance must be struck lest more injustice, fed and waxed by its own weight...

One thing is certain, lessons can be drawn for all from all these cases... Russia has got a lot of work to do in improving its treatment of minorities inside its borders... Nationalism and xenophobia have reached unacceptable levels in recent years... Regardless of the political background and possible justifications for some of the political events, the end result is simply not to be tolerated...

Thinking along those lines, as I am hopeful and extremely excited to visit ECHR in April and be present at the hearing of this interesting case along with a group of students from Moscow State University.

50th anniversary of ECHR

At its opening of the new Judicial Year on January 30, 2009 the European Court of Human Rights marked its 50th anniversary.

In his welcoming speech President Costa expressed:

The national courts help us to ensure that States respect the rights guaranteed by the
Convention, demonstrating the importance of domestic remedies and therefore the
principle of subsidiarity; if the Convention is a “living instrument” it is also because
you make it live. International courts show that the existence and expanded role of
numerous international judicial bodies make possible a joint effort to uphold justice
and fundamental rights....

The “resurrection of human rights” which occurred at the end of the 1940s was of
course ideological, but this ideology was ultimately carried forward by an almost
unanimous political wave of enthusiasm. At the United Nations the Universal
Declaration was adopted without a single vote against. It was a revolt (“never again”)
and an aspiration (for peace, justice and freedom).
More recently new threats and a new context have emerged: terrorism, crime (whether
organised or not), different types of trafficking. All this has created tension in public
opinion and in our societies and a tendency to give precedence to order and security.
The influx of clandestine immigrants driven by poverty and despair has an impact on
policies, but has also been accompanied by xenophobia, racism and intolerance, or
contributes to their growth. In the same way the connection which is, sometimes overhastily,
made between certain types of religious belief and violence, or indeed
terrorism, has exacerbated susceptibilities, yet freedom of religion is also a
fundamental human right. This requires dialogue and not insults....

Moreover, the ideology of the protection of rights can no longer rely on the
groundswell of support that carried it forward in the fifties. It has come up against the
difficulties of establishing or maintaining peace, the return of materialism and of
individualism, the extolling of national interests, and more recently the financial and
economic crisis which could force freedoms into second place. Bismarck’s old
expression “Realpolitik” has reappeared and is regularly cited.
The protection of human rights has thus become more fragile, more complex, but does
that mean that it must yield?
My answer is No. On the contrary, I would argue that it is necessary to consolidate
and breathe new life into these rights, to bring about their aggiornamento.
For the full speech

In this speech I sensed the attempts to elaborate on the current state of human rights law and enforcement. Also it was an attempt to briefly delineate the challenges that human rights have been facing in the 21st century world politics... Quite amazing how the age dictates new formulas and new approaches to emulate old and well-settled principles...

Life lessons...

Out of life lessons and bitter experiences there comes light and wisdom... Not new to anyone, but it is worth repeating them like mantra every day... Here are some elaborated by me and worth repeating on this blog:

With some exceptions, you are in control of your destiny. You can carve your own reality.

When you find yourself at crossroads, choose the path that leads you to happiness as defined only by you for yourself.

If you are smart, good-looking and successful there will always be those ready to tear you apart, to envy you, mistreat you, attack you and throw bricks at you...

Protect yourself from evil but do not let fear and bitterness distort your inner peace.

Seek and find peace in your soul and try to spread that to your surroundings. Be the angel of love and warmth for people.

Love and give your life to your loved one but remember not to drown in the intensity of your emotion. Be prepared that your heart may break and you may not be loved. Let go. True love is unconditional.

Fight for your love and never lose hope.

Be outspoken and fight for the oppressed, but remember moments when it is best to shut up and let silence and dignity win your way.

Never lose your dignity even if you are desperate.

Dream and make your dreams come true but remember your place and your limitations.

Believe in your high ideals and do not compromise them but be realistic about life and people.

Do not ever allow people walk over you, use you and abuse you, but forgive and forget when they manage to do so.

Be ambitious but remember the fundamentals of life and what you may lose on the way to your goals.

Know yourself and be proud of your accomplishments but do not allow arrogance and vanity overshadow your achievements. The greatest people on Earth never knew how great they were.

If you are stuck on the road and lost, let your star guide you. Never lose faith in yourself.

Do not compete with others. Compete only with yourself and do absolutely your best. Often you are your worst enemy.

Do not expect people to recognize you and place you on your proper place. Mentally know your own place. Be humble and realistic for everything is relative in life.

Remember, human potential is ultimately without limits. Reach your potential by working hard, with integrity and fair play.

Be independent and do not let others control you and distort your originality. But with that search and find your flock, your crowd, and know the great value of teamwork. What you can't accomplish all alone can be easily accomplished by a group of like-minded.

Develop iron will, discipline and strength to meet and endure numerous challenges and misfortunes in life. Rely only on yourself and do not expect help from others.

Put your energy in service for humanity and always remember the weak, the oppressed, the least fortunate, persecuted and accused. Your life will be fulfilled only if you sacrifice yourself for them.

Never lose faith in the humanity. Always hope for better and brighter future...

[Painting by Leonardo da Vinci "Madonna in the Cave."]

Marching of a New Era...

It has begun... It is not about talking and pointing fingers, but about living it, day after day...

Obama closes Gitmo... Read here