Eurasianet Organization
March 12 2004
RIGHTS ADVOCATES STRIVE TO PROMOTE JUDICIAL INDEPENDENCE IN ARMENIA
Emil Danielyan: 3/12/04
Armenia’s judicial system is facing scrutiny from human rights
advocates, who assert that executive authorities continue to exert
undue influence over judges. Some non-governmental organization
activists are exploring ways to promote a greater degree of judicial
independence by making it more difficult for authorities to detain
citizens.
The lack of the judicial system’s independence is rooted in Armenia’s
post-Soviet constitution, which states that the president is “the
guarantor of the independence of the judicial bodies.” Such language,
in effect, gives the president the ability to appoint and dismiss
virtually all judges at will. Conversely, the constitutional
provision effectively intimidates judges into making decisions
designed to please incumbent executive branch officials, rights
advocates say.
Research conducted in 2002 by the American Bar Association’s Central
and East European Law Initiative rated Armenia negatively on 18 out
of the 30 indicators that comprise its Judicial Reform Index (JRI)
for formerly Communist nations. Eight of the 12 remaining criteria in
Armenia’s JRI were rated as “neutral.” Among the negative categories
were “judicial qualification and preparation,” “selection and
appointment process,” “adequacy of judicial salaries” and “judicial
decisions and improper influence.”
In comparing Armenia’s performance with other CIS states, the JRI for
Ukraine gave a negative grade for 12 of the 30 reform criteria. A
newly published report on Kyrgyzstan, meanwhile, gave negative
evaluations in 19 of the 30 categories.
“Bribery is a common problem, caused … by low judicial salaries,
mistrust of the judicial system and historical practice,” the Armenia
JRI stated. “Judges often get telephone calls from officials, parties
and `intermediaries’ in an attempt to influence their decision.”
“One lawyer stated that an appellate judge told him directly that he
could not resist the opposing pressure to decide [the case in
question] a certain way for fear of jeopardizing his professional
future,” the report added.
Opposition protests over alleged vote fraud during the presidential
election in 2003 underscored the judiciary’s apparent susceptibility
to executive pressure. [For additional information see the Eurasia
Insight archive]. A police crackdown on supporters of incumbent
President Robert Kocharian’s main challenger, Stepan Demirchian
resulted in up to 400 arrests. Many of the opposition detainees were
sentenced to up 15 days in prison on administrative charges for
participating in unsanctioned demonstrations. While in jail, most
opposition activists were denied access to lawyers and faced closed
trials in breach of Armenian law.
The post-election crackdown, which was denounced by the Council of
Europe and other international organizations, was carried out under
the auspices of Armenia’s Code for Administrative Offenses, a
Soviet-era relic that enables security agencies to briefly jail
people without probable cause. Human rights activists allege that the
administrative code has often been manipulated by authorities to keep
suspects in custody while cases against them are manufactured.
According to Avetik Ishkhanian of the Armenian Helsinki Committee,
courts, in such instances, merely act as “notaries,” effectively
recording the cases brought by police.
Human rights activists say one way to check executive influence over
the judiciary is to raise the standards by which prosecutors can
detain suspects prior to trial. Existing laws and regulations, along
with compliant judges, now make it easy to keep suspects in jail.
Official figures revealed, compiled by a local NGO, tell the story:
Armenian courts granted almost 97 percent of the 5,116 requests for
pre-trial detention filed by state prosecutors in 2003. In the vast
majority of these cases, rights activists contend, prosecutors did
not present evidence or make legal justifications in their detention
requests.
Ishkhanian, the Helsinki Committee activist, said that keeping
suspects in prison in Armenia is conducive to injustice and human
rights abuses. “It is always easier to extract confessions from
detainees than from those who are at large,” he told EurasiaNet in an
interview. “Law-enforcement bodies here continue to operate under old
methods.”
The pre-trial detention issue is currently the subject of in-depth
study by a Yerevan-based NGO, the Civil Society Institute (CSI). The
organization is examining detention centers across the country,
interviewing judges, law-enforcement officials and lawyers. The study
began in September 2003. The group is already lobbying for the
passage of legal changes that would establish tougher requirements
for arrest and detention.
“There are practically no justifications in arrest petitions
submitted by investigators,” says CSI lawyer Narine Rshtuni. “Nor do
they seek to prove that a particular individual will escape trial or
obstruct the investigation.”
Hrach Sarkisian, chairman of the Armenian Union of Judges, defended
the judiciary’s independence, claiming that most magistrates do not
bow to pressure from prosecutors or executive officials. He blamed
existing problems on shortcomings in the law, specifically the
framework for pre-trial detentions that allows for detention without
the presentation of evidence of any misdeed. Contradicting
Sarkisian’s claims, one judge quoted by a preliminary CSI study says:
“The courts will do a better job if the judges get real independence.
If the judges were independent 30 or 40 percent of arrest petitions
would not be approved.”
CSI chairman, Artak Kirakosian, expressed hope that Kocharian’s
administration will be receptive to reforming the country’s Code for
Procedural Justice along the lines recommended by the NGO. Kirakosian
pointed out that Armenia’s Council of Europe membership obligations
required further efforts to reform the judiciary. Other activists,
including Ishkhanian, are more skeptical, believing that Kocharian
wants to retain his administration’s influence over the judiciary.
“This [promoting an independent judiciary], as well as free
elections, is something that Armenian authorities will never do,”
Ishkhanian said. “Any judicial reform will be cosmetic. I’m quite
pessimistic on this issue.”
Editor’s Note: Emil Danielyan is a Yerevan-based journalist and
political analyst.