Abstract
The purpose of this chapter is to portray the contemporary legal environment within which Georgian lawyers operate. In subsequent chapters I will show how this environment constrains the process of professionalization by limiting the scope of legal practice and shaping the choices of legal actors. The first section addresses the fact that, despite its stability relative to the early 1990s, Georgia remains a partly failed state.1 It lacks effective government and large parts of the country de facto remain outside of the centre s authority. The second section describes the failure to adequately implement the formal legal reform process launched in the mid-1990s and highlights corruption and human rights problems. The third section of this chapter explores the continued use of informal law, which sometimes intersects with formal institutions and at other times appears entirely unconcerned with formal legal values and institutions.
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References
For a good typology of failed states, see D. Thürer, “The ‘failed state’ and international law”, International Review of the Red Cross 1999 No.836, 731–761.
See “Tbilisi criticizes Armenian visit to Abkhazia”, RFE/RL Caucasus Report, Vol. 3(45), 16 November 2000.
See for example, Amnesty International’s comments on the application of the death penalty in the two territories. “Georgia: Summary of Amnesty International’s Concerns” (August 1998, AI Index EUR 56/02/98). On 8 April 2001, South Ossetian voters approved a new constitution for the territory (see L. Fuller, “South Ossetian President Strengthens his Position”, RFE/RL Caucasus Report, Vol. 4(14), 10 April 2001).
Interview with C on 16 December 1998.
For example, the Horizonti Foundation has provided grants to an NGO operating in Eastern Georgia for the production of a guide to IDPs’ rights and the provision of legal consultation.
Some IDP spokespersons have called for Shevardnadze’s expulsion from Georgia: L. Fuller, “Georgia appears to backtrack on Abkhaz accords”, RFE/RL Caucasus Report, Vol. 4(5), 2 February 2001.
G. Glonti, “Problems Associated with Organized Crime in Georgia”, undated article published online by the Institute of Legal Reforms (Tbilisi) at www.geo.net.ge/reform/ eng/publicationl.html.
“Fate of Russia’s Akhalkalaki base still unclear”, RFE/RL Caucasus Report, Vol. 3(45), 16 November 2000.
R. Giragosian, “The War on Terrorism: Implications for the Caucasus”, Eurasia Insight 29 September 2001.
See “Is Russia seeking to impose an economic stranglehold on Georgia?”, RFE/RL Caucasus Report, Vol. 3(46), 30 November 2000.
Ibid.
“General Procurator’s Office is Taking Over the Case”, Svobodnaia Gruziia 14 July 1999. In another legal battle, Ajaran authorities refused to release a prisoner who had been pardoned by President Shevardnadze: “Supreme Court Demanded to Release Tengiz Asanidze Immediately”, Sarke Information Agency 29 December 1999.
Constitution of Georgia adopted on 24 August 1995 (hereinafter “Georgian Constitution”). For an English translation see Feldbrugge, “The Constitution of Georgia”, op. cit. chap. l,note 49. An English version of the Constitution can also be found at the Georgian Parliament’s web site: www.parliament.ge.
On the American influence over the form of government chosen see G. Papuashvili, “Presidential systems in post-Soviet Countries: the Example of Georgia”, Georgian Law Review 1999 No. 3,3–23.
Although the governing Citizens’ Union Party has agreed to reintroduce the post of Prime-Minister: L. Fuller, “Papering Over the Cracks in Georgia”, RFE/RL Caucasus Report, Vol. 4 (16), 26 April 2001.
Much of the language of the Universal Declaration of Human Rights (Adopted and Proclaimed by UN General Assembly Resolution 217 A(III) of 10 December 1948) appears in the Constitution.
Georgian Constitution, op. cit. note 13, Art. 34(2).
Ibid., Preamble.
See for example, ibid., Art. 38(2) which states that “the exercise of minority rights should not oppose the sovereignty, integrity and political independence of Georgia”.
Ibid., Art. 1.
Ibid. Arts. 2, 4 and 108. For a discussion on ways of resolving Georgia’s territorial disputes through constitutional change, see B. Coppieters, D. Darchiashvili & N. Akaba, Federal Practice: Exploring Alternatives for Georgia and Abkhazia, Brussels 2000.
Ibid. Chap. 5. Many aspects of the judiciary s organization were left to Parliament however.
In addition to Chapter 5 of the Constitution, the relevant pieces of legislation are the Law on the Constitution of Georgia (31 January 1996) and the Law on Procedure in the Constitutional Court (22 March 1996). The Court follows the German model with jurisdiction to hear cases in three ways. The first is to be petitioned by the elected representatives to rule on the constitutionality of legislation or state actions. The second is to decide on constitutional issues in cases referred to it by lower courts. Finally individuals can challenge the validity of legislation violating their constitutional rights before the Court.
Judges’ profiles are contained in an undated (c. 1997) court pamphlet entitled “Constitutional Court of Georgia”. The composition of the bench has changed only slightly since its inception.
Author’s observations during an address to judges’ assistants at the Court (“Lessons from Canadian Federalism”, June 1998, Tbilisi).
“Coordinating Reforms in the Public Sector: Improving Performance and Combatting Corruption”, Briefing notes for the World Bank workshop held on 21–23 June 1998 in Tbilisi, 10 (hereinafter “Coordinating Reforms”).
Ibid. So as not to unduly pathologize the Georgian experience, it should be stated that courts are held in poor esteem throughout much of the former Soviet Union; as Russian President Vladimir Putin told Parliament in April 2001: “We badly need judicial reform today The country’s judicial system is lagging behind real life and is not very helpful in carrying out economic transactions. Not only for entrepreneurs but also for many people who are seeking to restore their rights in law, the courts have not been quick, fair, and impartial.” (Cited in T. Frye, “The Two Faces of Russian Courts: Evidence from a Survey of Company Managers”, 11 East European Constitutional Law Review 2002 Nos. 1–2,125–129, 125.)
“Georgia Judicial Assessment”, op. cit. chap. 1, note 53, 15.
To give some sense of the purchasing power of the Lari, a short return trip on a mini-bus (a common form of urban transportation) costs 1 Lari, as do two loaves of bread. The UN estimates that a subsistence wage is 102 Laris per month (see UNDP, Human Development Report: Georgia 1999, Tbilisi, 16).
Georgian Constitution, op. cit. note 13, Art. 83(4).
Presidential Order No. 726 of 30 December 1998. Although this was subsequently reduced by 20–30% due to budget cutbacks.
See S. Kinzer, “Georgia, Judging That Most Judges Shouldn’t, Readies Replacements”, New York Times 12 July 1999, A4. On women passing the exams in disproportionate numbers to their previous composition on the bench: A. Tskitishvili, “Elite Judges Punished for their Offences Against Citizens”, Resonance 2 November 1998 (cited in CIPDD Monitor, 2 November 1998).
Avtandil Chachua v. The Parliament of Georgia (heard 3 November 1998), Constitutional Court of Georgia. Unofficial English translation of decision on file with the author.
The protests prompted the judges of the court to complain to the prosecutor, who in turn charged the leaders of the Liberty Institute with insulting a judge, hooliganism and holding a protest without a permit. G. Kapanadze, “Zhvania and Saakashvili May Be Arrested”, Resonance 31 March 1999, 1 (cited in CIPDD Monitor, 31 March 1999).
Kinzer, op. cit. note 32.
170 complaints were received in 1999 compared to 715 in 1998: Annual Report—Public Defender of Georgia, Tbilisi 1999.
The sign in Vake District Court reads: “Judges will not accept visits from citizens regarding their cases. You will be notified the day of your case through the secretary and cases are filed directly in the secretarial office.” (Observed 21 May 1999.)
Interview with ?? on 2 May 1999.
Interview with BB on 7 June 2000. The concern about resort to “reasonableness” may partly reflect the mechanical view of judicial interpretation (judges should simply apply the law) common in the former Soviet Union and indeed in many civil law jurisdictions. Lawyers also complain that judges are unfamiliar with new areas of law such as bankruptcy.
Georgian Opinion Research Business International (GORBI), Judicial Reform in Georgia: A Study of Public Opinion (final report prepared for the World Bank, Spring 2000), 16. On a scale of trust from 1 (no trust) to 4 (much trust), courts and judges scored 2.2 in 2000, up from 1.98 in 1998.
For an analysis of recent Russian moves in this regard—and the necessary balancing involved—see P.H. Solomon, “Putin’s Judicial Reform: Making Judges Accountable as well as Independent”, 11 East European Constitutional Review 2002 Nos. 1–2, 117–124.
See C. Stefes, “Debilitating Georgian Corruption”, Transitions On-Line 2 October 2000 and “Economic and Social Rights”, South Caucasian Human Rights Monitor (January) 2000.
Happily, infrastructure rehabilitation is one of the aims of the World Bank’s US$ 13.4 million Judicial Reform Project for Georgia: World Bank, “World Bank Approves US$ 114.9 Million for Georgia” (News Release No. 99/2288/ECA, 29 June 1999).
Personal observations from visits in 1999 and 2000.
J.N. Hazard, “Furniture Arrangement as a Symbol of Judicial Roles” in A.D. Renteln & A. Dundes, Folk Law: Essays in the Theory and Practice of Lex Non Scripta, Madison 1994, 459.
Georgian Constitution, op. cit. note 13, Art. 91.
In fact in some regions, the prosecutor’s job is divided up between “clans”. For example, the Georgian media has suggested that in Akhalkalaki four Armenian clans have divided up all powerful positions (prosecutors, judges, police chiefs, political party leaders and criminal bosses): see “Inter-Clan War in Akhalkalaki: The Only Idea They Share Is That of Autonomy”, CIPDD Monitor 21 September 1998.
Like other jurists, however, prosecutors are familiar with the rhetoric of human rights: interview with E on 17 April 1999.
See L. Fuller, “Embattled Georgian Prosecutor-General Resigns”, RFE/RL Caucasus Report, Vol. 4 (6), 8 February 2001.
On Georgia’s treaty law see K. Korkelia, “Treaty Law and Practice in Georgia”, 25 Review of Central and East European Law 1999 No. 3, 445–457.
Art. 43 of the Partnership and Cooperation Agreement Between the European Communities and Their Member States, of the One Part and Georgia, of the Other Part. The agreement, which entered into force on 1 July 1999, is available online at http://www.eudelegation.org.ge/pao.html.
On some of the system dangers inherent in “top down” international harmonization of law movements, see P.B. Stephan, III, “Institutions and Elites: Property, Contract, the State, and Rights in Information in the Global Economy” (University of Virginia Law & Economics Research Paper No. 01–9, 2001). Among other things, he cites the possibility that unification reduces healthy competition among legal rules.
See B. Zoidze, “The Influence of Anglo-American Common Law on the Georgian Civil Code”, I & II Georgian Law Review 1999, 10–19. For a broader discussion on the role of legal imports see Ajani, op. cit. chap. 1, note 47.
To take two examples, oil and gas legislation was promoted by USAID contractor Hadler Baxley, and advisors were provided to Georgia’s anti-monopoly service by USAID through the Center for Economic Policy and Reform.
For a full discussion of this issue, see W.B. Simons, “The Commonwealth of Independent States and Legal Reform: The Harmonisation of Private Law”, Law in Transition (Spring) 2000, 14–24. As early as 1992 Feldbrugge noted that”[a]mong leading Georgian lawyers a certain tendency is noticeable towards “legislation shopping”, selecting models for various branches of law... which seems most suitable for Georgia...” (“Law of the Republic of Georgia”, op. cit. chap. 2, note 130, 374.)
On the difficulties in implementing one legal regime, including the need for legal expertise, see Kovacic & Slay, op. cit. chap. 1, note 49. The inadequacy of simple legal transplants is also addressed in the Conclusion.
See Ramasastry, Slavova &Vandenhoeck, op. cit. chap. 1, note 52.
Ibid.
This discussion of criminal procedure draws heavily on Human Rights Watch, Georgia—Backtracking on Reform: Amendments Undermine Access to Justice, Tbilisi, October 2000.
Ibid.
Stefes, op. cit. note 42. See also “Georgian Majority Parliamentary Faction Renews Criticism of Interior Minister”, RFE/RL Caucasus Report, Vol. 3 (43), 3 November 2000.
J. Devdariani, “Georgia’s new ministers of interior, state security grapple with legacy of mistrust”, Eurasia Insight 28 November 2001.
Stefes, op. cit. note 42.
Ibid.
Ibid.
UNDP, op. cit. note 29, 25–35.
“La Géorgie saignée par les trafics et la contrebande”, Le Monde 9–10 April 2000, 3.
“Coordinating Reforms”, op. cit. note 26.
On the effects of corruption on democratization more generally, see C.H. Stefes, “The Incompatibilities of Institutionalized Corruption and Democracy in the Former Soviet Union: The Case of Georgia” (unpublished Ph.D. dissertation, University of Denver, 2002).
This discussion on the traffic police, which is based on personal observations and a UNDP report, op. cit. note 29, 39, reflects a common pattern in many parts of the former Soviet Union.
Z. Anjaparidze, “The Impact of Media and Information Exchange on Georgian State-Building”, UNDP Discussion Paper 1999 No. 2, 13.
The worship services of Evangelical Christians and Jehovah’s Witnesses are frequently disrupted by police. At other times, police have looked on as radical Orthodox Christian Georgians have violently attacked worshippers. See Amnesty International, “Georgia—Continuing allegations of torture and ill-treatment” (AI Index: EUR 56/01/00, February 2000).
A brief description of the investigation procedure, more familiar to Europeans, may be useful. Briefly, in Georgian Criminal Procedure an investigator (in most cases from the Ministry of Internal Affairs) may conduct inquiries into suspected crimes. Then, with the sanction of the Procuracy, charges may be laid and an individual taken into custody. Within 72 hours a judge must rule on the lawfulness of the detention. Once a suspect is charged, a formal investigation, known as the preliminary investigation, is commenced. The preliminary investigation may take up to nine months to complete and involves the preparation of a case file which is then presented to the defence and the competent court.
Amnesty International, op. cit. note 72.
For example, Principle 17(1) of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Adopted by General Assembly Resolution 43/173 on 9 December 1988) states: “A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.”
Human Rights Watch, op. cit. note 59.
Amnesty International, 1998, op. cit. note 3, 11.
Z. Mikatadze, “I’ll Seat You and Your Lawyer on a Broken Bottle”, Resonance 28 January 1998.
“Life of a lawyer under threat in court”, Human Rights in Georgia Monthly Bulletin Nos. 22–23/2000, 27 November 2000.
In a 1997 speech at a Council summit, President Shevardnadze declared,” we are reuniting with Europe, as an offshoot grafted into a life-giving stock, to contribute to the salvational message of European culture and find within it our own salvation”. Second summit of heads of state and government, Council of Europe, Strasbourg 11 October 1997. Text of speech available online at vvww.coe.fr/cm/sessions/97summit2/georgia.htm.
Human Rights Watch, op. cit. note 59, 7.
ETS No. 5, 11 November 1950. Ratified by Georgia on 20 May 1999. Among other treaties, Georgia has signed and ratified (on 20 June 2000) the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, ETS No. 126, 26 November 1987.
Council of Europe, P.A. Opinion No. 209 (1999).
C.Welt, “Georgia Annual Report 1999:‘A Return to Eurasia’”, Transitions Online.
See P. Leuprecht, “Innovations in the European System of Human Rights Protection: Is Enlargement Compatible with Reinforcement?”, 8 Transnational Law & Contemporary Problems 1998 No. 2, 313–336.
UNDP, op. cit. note 29, 61.
For example, one study has shown that kinship provides a strong “safety net” for the internally displaced: J.L.V. Pol, “Stable Instability of Displaced People in Western Georgia: A Food-security and Gender Survey after Five Years”, 12 Journal of Refugee Studies 1999 No. 4, 349–366, 361–362.
Some of them representing a threat to the central government were arrested or killed in the early 1990s. Others have moved to Russia: Glonti, op. cit. note 7.
Interview with AA on 19 September 1998.
Glonti, op. cit. note 7.
G. Chikhladze, “Fear Makes Justice Wild”, 4 Georgia/Caucasus Profile 2000, 22–23.
Ibid., 23.
In sexual violence cases the “shame” factor would also make the victim and others reluctant to report to police.
In one case reported to me, a Kurdish mother was offered cash shortly after her son was killed by a senior military official driving drunk. The mother never reported the case to police as it is considered foolish for Kurds (a minority widely discriminated against) to seek police assistance. Interview with LL on 1 June 1999.
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Waters, C.P.M. (2004). The Legal Environment. In: Counsel in the Caucasus: Professionalization and Law in Georgia. Law in Eastern Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5620-4_4
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