Tuesday, 2 October 2007:

OSCE Human Dimension Implementation Meeting

Working Session 13, Rule of Law III, including independence of the judiciary and the right to a fair trial

In light of ongoing efforts to reform the legal system in Armenia, the
International Helsinki Federation for Human Rights (IHF) and the Armenian
Helsinki Committee would like to highlight a number of major issues of concern.

Amendments to the Armenian constitution adopted in 2005 brought a number of
positive changes, such as reducing the president’s powers in the appointment of
judges, as well as in disciplinary and dismissal procedures, and allowing courts
and citizens to directly challenge laws in the Constitutional Court. These and
other progressive provisions have, however, largely remained unimplemented, and
the executive still continues to influence procedures affecting the status of
judges, while not a single court had made use of the possibility to request the
Constitutional Court to revise laws by the end of 2006.

A major remaining problem with respect to the functioning of courts is the
prevalence of Soviet-era thinking, which negatively affects especially the
principle of equality of parties. The procuracy is still perceived as the key
player in trials, and many judges continue to see it as their task to defend the
state, rather than to render impartial decisions.¹ As a result, not-guilty
verdicts are rare. It is also a relic of the Soviet era that courts often
continue to protect the letter of individual, outdated, laws even if they are
clearly at variance with the constitution. In a more promising development,
however, some courts have started applying and citing case law of the European
Court of Human Rights in their judgments.

Another matter of serious concern is that courts do not deal adequately with
allegations of torture and ill-treatment, in violation of international human
rights law. In the courtroom about 80% of defendants renounce statements made
during pre-trial interrogations, but judges typically ignore such retractions,
although abusive pratices are known to be widespread in pre-trial detention.

The right to a fair trial is, further, undermined by frequent procrastinations
of judicial proceedings; failure to notify parties about hearings; and hearings
held in the absence of defendants and their legal counsel. Access to justice for
common citizens is also restricted by disproportionately high lawyers’
honoraries and lack of sufficiently developed ex officio legal service schemes
to provide quality assistance to everyone who needs it.

Because of low salaries, judges remain susceptible to corruption, which
contributes to weak public trust in courts. Repondents to a survey carried out
in 2005 considered courts and prosecutors’ offices to be the most corrupt state
institutions in Armenia and generally believed that corruption was on the
increase in these field, despite an anti-corruption campaign launched in 2001.

While Armenian legislation provides for several alternatives to detention for
restraining the liberty of crime suspects (such as bail and signed pledges not
to leave the place of residence), courts rarerly reject requests for detention
filed by law enforcement authorities, regardless of the gravity of the crime of
which a suspect is accused.

Recommendations:

The IHF and the Armenian Helsinki Committee call on the Armenian authorities to
adopt further constructive reforms to improve the independence and functioning
of the judicial system and ensure respect for fundamental rights in the
administration of justice. In particular, we recommend that the Armenian
authorities:

1. Ensure adequate implementation of the recent changes to the constitution
   limiting the influence of the executive on the appointment and dismissal of
   judges as well as other legislation regulating the separation of powers between
   the judicial and executive branches of government;
2. Rewiew and develop the education and training of judges so as to make sure
   that they are equipped to efficiently perform their duties within the framework
   of the current legal system and with due respect for rights protected by the
   constitution and international human rights law;
3. Improve the position of legal counsel during the pre-trial period and ensure
   that allegations of torture and ill-treatment that arise during cour hearings
   are adequately investigated;
4. Raise salaries and improve social guarantees (such as pensions) of judges in
   order to improve their standing and combat corrupt pratices;
5. Develop existing schemes for provision of ex-officio legal services wirth a
   view to improving their availability and quality.

¹ American Bar Association’s
Central European and Eurasian Law Initiative (ABA/CEELI), Judicial Reform Index
for Armenia, December 2004, at

http://www.abanet.org/rol/publications/judicial_reform_index.shtml.