Monday, April 27, 2009
"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).
Saturday, April 4, 2009
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