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Bar News - March 23, 2001


NH Lawyer Updates Rule of Law Work in Former Soviet Union

By:

A Dispatch from Poland

Editorís Note: Former NH Public Defender Donald E. Bisson has been working primarily in central Asia and the Caucasus on "Rule of Law" projects. His efforts were initially profiled in the Oct. 20, 1999 issue of Bar News.

As the Rule of Law Adviser for the Organization for Security and Co-operation in Europeís (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw for the last year, I was responsible for implementing 20 projects in 10 countries. The projects included training prosecutors, judges and defense lawyers; prison service training; establishment of national ombudsman institutions to monitor and enforce human rights; establishing legal clinics and advice centers; assistance with legislative reform; and human rights training for law enforcement personnel.

The goal of the projects is to help the countries that emerged from the collapse of the Soviet Union to meet the human rights obligations they agree to when joining the OSCE, the United Nations and the Council of Europe. The OSCE is an inter-governmental organization with 55 members, including the US and Canada, which seeks to keep the discussion of human rights in the forefront of international dialogue and aid.

Although the notion of the rule of law is often synonymous with effective law enforcement, this is only one aspect in the context of my work. Viewed more broadly, the concept of the rule of law requires that all state actors are bound by the law and nobody is above the law.

This approach is difficult to accept for those who have worked in the legal or law enforcement spheres in the nations of the former Soviet Union. During communist rule the state was seen as the repository of human rights which they doled out to their citizens as they saw fit. The state also had the power to take away any rights that had been given to citizens. The new constitutions and laws of these countries reject this approach and clearly adopt the concept that human rights are inalienable and remain with the citizens. Unfortunately, most of the citizens of these nations are not aware of the changes that have been made and still believe that the State controls what rights they may exercise.

Another important aspect of rule of law work in these countries is that all of their new constitutions incorporate international human rights law into domestic law. This means that, in theory, all treaties ratified by the government take precedence over any conflicting domestic law. The problem here is that most judges, lawyers and citizens are not aware of the treaties their governments have ratified and believe that the old domestic laws are still in effect. Even when the domestic laws have been changed, they are rarely disseminated to the judges and lawyers, never mind to the public. Consequently, these new laws are infrequently implemented or enforced.

Many of the projects implemented last year were attempts to inform those involved in the criminal justice system of the effects of international law on domestic law. ODIHR seeks to train defense lawyers to use the international standards that have been incorporated in domestic law when representing clients. Part of the difficulty is that defense lawyers are not used to advocating for their clients. In the Soviet system they were often nothing more than props in the courtroom and were rarely allowed to "defend" their clients. Prosecutors on the other hand were in control of everything that took place in the courtroom. They had more power than the judges and often dictated the outcome. Often in the Soviet era, prosecutors would not even show up for hearings and trials because they had already instructed the judge on the outcome and could count on the judge to prosecute their cases for them. This is a practice that continues today in many countries.

Prosecutors are loath to give up this power now and do not understand why they should. They often ask me who will protect the rights of the citizens if they are stripped of their power, never thinking that this is the job of an independent judiciary and an active defense bar.

One of the major problems is the lack of political will of the so-called democratically elected presidents of most of these countries to move reforms forward. Most of them are the old communist party bosses who have simply changed their political stripes. Several of the Central Asian countries, in particular, are essentially autocracies. These men stay in power because the citizens have no tradition of democracy to rely upon and have no understanding of what it means for the government to be for and by the people.

Although the situation sometimes appears bleak, there are areas of hope. In Kazakhstan, we have been successful in helping to reform the prison system due to the assistance of a progressive chief administrator. He understands that the acceptance of human rights standards for the treatment of prisoners will eventually lead to safer and more secure prisons. In several countries we have been able to get an ombudsman office established with the power to investigate abuses of human rights and allegations of torture. Through our legislative reviews we have been able to have significant changes made in domestic laws before they are adopted. Our training programs have led to some judges exercising a level of independence from the prosecutor and defense lawyers who file motions and attempt to get the courts to enforce the law.

One of the most rewarding aspects of the job is working with people who risk their lives every day to push their governments towards democracy. These people are prepared to give up everything in order to achieve reforms that are taken for granted by most Americans. As a public defender I always felt that my work was important to the survival of our democracy. My work as Rule of Law Adviser has convinced me that this is true on a more basic level, especially in the countries of the former Soviet Union.

In America we argue about the meaning of the law while maintaining a basic belief that it will be upheld. We also have a fundamental faith in the process by which we apply the law. In the countries of the former Soviet Union they are still trying to understand what the rule of law means in a system where it used to mean whatever the government said it meant.

Donald E. Bisson, stationed in Warsaw, Poland, is Rule of Law Adviser for the Organization For Security and Cooperation in Europe, in the Office For Democratic Institutions and Human Rights. Bisson worked in the NH Public Defenderís Office for 10 years before beginning his international work. His email address is don@odihr.osce.waw.pl.

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