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Lawyers for Justice (Appeal)

April 29, 2008

The principle of equality between the defense and prosecution parties is breached in practice of the Georgian judiciary system. The principle is guaranteed by the Article 11, paragraph I of the Universal Declaration of Human Rights, Article VI, Paragraph I of the European Convention on Human Rights, Article 42, Paragraph VI of the Georgian Constitution, Article 15, paragraph I and III of the Georgian Criminal Code.

Artificially Created Barriers for Attorneys

1. An attorney cannot make a copy of case materials without the signature of the prisoner, which  must be also confirmed by the social worker or the director of the penitentiary establishment;
2. An attorney is prohibited to appeal against the preliminary imprisonment without prisoner’s signature, which must be confirmed by the social worker or the director of the penitentiary establishment;
3. an attorney is prohibited appealing against the verdict without the prisoner’s signature, which must be confirmed by a social worker or a director of the penitentiary establishment;
4. Working conditions in the prison facilities are not considered as several rooms are allocated for attorneys in the prisons and these are for thousands of prisoners to meet with their clients. Consequently, the lawyers have to wait for their turn all day long initially to get a permit; then to be searched, then to sign documents and to finally meet with the prisoner.
5. The confidentiality of the meeting between the prisoner and the attorney is breached-video and audio recorders are installed in the meeting rooms. Although the board of the penitentiary department categorically denies the existence of the audio-video recorders it is incredible that similar meetings were not recorded in the room with a video-camera and particularly in the country where everybody is being listened to. Even if there were only video-cameras in these rooms, it would still indicate that the confidentiality of the meetings is breached. It does not make sense to install video-cameras because both prisoners and attorneys are always searched before the meeting. The prisoner is searched after the meeting too (inmates are stripped searched in the new facility the Gldan region, Tbilisi). Thus, in similar situation existence of video cameras in the meeting room breaches the confidentiality of meetings between the lawyer and the client; it does not serve the purpose of security whatsoever.

The attorney as a party is ignored

1) An investigator is not required to inform the attorney about the conclusion of the preliminary investigation;
2) An investigator are not required to make a conclusion regarding the new charge of the prisoner before case materials are sent to the court and inform the attorney about it.
3) When the liability of the accused is discussed all case materials are not introduced to the court any longer. The court is provided with only the part of the case materials that is considered necessary by the side of the prosecution. Consequently the attorney is deprived from the right to introduce the judge with case materials and to use them to assist the side of the defense.
4) Appeal Court is authorized to refuse or to discuss the case without verbal consideration (that means in the absence of the attorney) when the verdict on the accused passed by the court of the first instance court has been appealed;
5) The judge as a rule does not satisfy the absolute majority of the motions of the attorney;
6) The attorney does not have a right to make a remark at any stage of the judiciary investigation expect at the cross examination that makes it impossible to preserve the principle of equality between the parties.
7) The judge grants the attorney with minimal amount of time (as a rule it does not exceed 10-15 minutes) to make a statement and the defense party is unable to express their arguments in the majority of instances.

 
The Violation of the principle of Equality between Parties and Partly Transfer of the Functions of a Judge to a Prosecutor

8) A judge can not file the verdict of suspended prison sentence or lighter sentence at his/her judgment.  A judge can act in such a way at the request of a prosecutor.
9) The side of the prosecution has unlimited access to be able to apply pressure on witnesses and it uses this opportunity by intimidating and blackmailing witnesses.
10) The abolition of cross examination, as one of the ways to carry out investigative activities resulted in the attorney losing one of his/her important tools.
11) The draconic legal amendments doubled and tripled the terms of sentences. The principle of consumption of sanctions has been abolished. The sanctions against incomplete offence (planning to commit a crime and the attempted carrying out of the criminal act) are equaled to the sanctions against a completed crime. A new principle of court trying of an accused person when one who is being sought after is not present and is tried and a verdict passed in his or her absence.

 

Restricting the Rights of Judges Denies Fair Trials

Since September, 2007 judges were provided guidelines that deprives them of the right to pass sentences for particular crimes. The guidelines indicate the exact circumstances that must be taken into account by the standing judge. This opposes the principle of passing a sentence by a judge based on his own experience and moral standing.

 

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