Interview with Siranush Sahakyan, legal expert of Civil Society Institute NGO, on the motives and significance of applying to the European Court   

Why do people apply to the European Court?

When national government bodies violate rights of people, and national courts neglect their duties and show no wish to restore them, a fourth international opportunity is created for people to get protection. European Court is a supplementary court. It does not replace national courts. It has to be taken into consideration that this protection is not unlimited, it is provided for concrete rights stipulated by the European Convention and its protocols. There is a precondition that a person has to exhaust all effective and adequate domestic remedies before applying to the European Court and file the complaint within six months after the final national verdict is made.      

How many complaints were submitted against the Republic of Armenia?

According to the European Court statistics, more than 1000 complaints have been submitted against the Republic of Armenia. A large number of complaints have been considered inadmissible. As of January 1, 2010, 393 cases have been considered inadmissible; no decision has been made about 814 cases yet. In general, 95% of the applications lodged with the European Court are considered inadmissible. It means that procedural rules of applying to the court are not followed: violation of law may be obvious but the court can consider it inadmissible because of not following the procedural rules. In this respect, it is very important to present the case in a strategically correct way at the national level and keep the conditions of admissibility of the complaint at the European Court.

What rights are violated most often?

If we consider European Council member countries, most of the complaints deal with the violation of the right to fair trial, especially trial in a reasonable time as well as the right to life and prohibition of torture, inhuman or degrading treatment. Violations of right to property, liberty and immunity are also relatively frequent.

Whether lodging applications with the European Court damage reputation of the Republic of Armenia as a rule of law state?

In a sense it can because the problems existing in the country are voiced at an international instance. For example, if the European Court finds a violation of Article 10 on the Freedom of Expression, it means that there is a problem in this country connected with the freedom of expression. Hence, the problems connected with the protection of human rights in the country become more obvious at international instances. On the other hand, it is a positive development because by taking issues on human rights to the court we artificially accelerate the process of reforms in the national system.

What cases have you submitted to the European Court?

I have submitted cases within the framework of strategic trials. Recently I submitted a case on the protection of property right. The property was taken away from a citizen without any legal basis, without a court decision. This is very dangerous for the country, and I consider this a strategic case. I am more than confident that the case will be declared admissible, and the violation will be found.

How is the person compensated after the European Court finds the violation of the law?

As a rule, the acknowledgement of violation is followed by awarding material and moral damages as well as litigation expenses and costs. If the person is able to prove damage due to violation of his rights as well as the cause-and-effect relations, the court will compensate it by all means. Contrary to national legislation, moral damage can also be compensated taking into consideration that violations, as a rule, are accompanied by certain emotions that can cause moral damage to the citizen. The European Court requires that the state awards pecuniary damages to the person. In Harutyunyan v. Republic of Armenia case, where the decision was made based on the proof obtained by torture, 4,000 euros were awarded as moral damages.

In 1959-2009 the European Court made 20 decisions about Armenia; 4 of them concerned to the prohibition of torture, inhuman or degrading treatment, 12 - the right to fair trial and 7 - other rights under the Convention.

So the state provides compensation from the state budget because of the violations done in the domestic courts. What should to be done to eliminate such violations?

First of all, impunity has to be eliminated: officials who allowed violations have to be held accountable, and the state should charge them with regressive claim also for property accountability. National bodies have to be ready to respond to the cases when the rights prescribed by the European Convention are violated but in that case there should be independent judges. The judges need to recognize the violation, eliminate its consequences and restore the situation. However, this problem is connected with many factors and often even when they are conscious of the violation they cannot provide protection to the victim.  

The fact that judicial authorities are not independent is a very serious problem: it is hard to imagine any development in any sphere without independent courts because it is somehow possible to accommodate oneself to the fact that the policeman violated your right; if there is independent court you can restore your violated right, achieve justice and feel safe in your own country. But when in case of violation of rights formally created courts do not try to restore justice, all the people living in the country feel endangered. Citizens do not want to apply to the European Court, they simply have no alternative. When they reach a deadlock, they start to look for the only way to prove their rightness, to get compensation and find justice in international judicial instances.

There is an opinion that judges do not make legal decisions for the fear of looking corrupted.              

If you are not corrupted in reality, you do not have such fears. But I believe that in Armenia there are no judges who have not been involved in corruption at some stage of their activities or have not taken bribes; even if they did not take any bribes for a concrete case they know that they have been involved in such kind of activity in the past and are sure that law enforcement bodies are informed about it and one day, when they need it, they may use this information against them. This is in my opinion the reason of court dependence on law-enforcement bodies.

If you are completely fair and have clean biography, even realizing that there are many fabricated cases in Armenia, you can behave courageously and not tremble for your fair verdicts. If you made yourself dirty once, you bear the brand on you forever as well as the accompanying fear.  

In your opinion, what is required to improve the situation?

We have to fight against certain phenomena but it is impossible to fight only by legal methods. For example, when you illegally ask someone to do something and this person is such a man of principle that refuses to do it, he/she faces a worse reaction and a more negative moral assessment than the person who agrees to do it. This means that the value system of the society is distorted as well. Today a good judge is the one who easily negotiates to fulfill an illegal demand. We have to eradicate such phenomena that have taken roots in the society and cause serious problems in upbringing and changing value systems of generations.    

Interview by Anna Barseghyan
Source: www.hra.am