JUDICIAL REFORM IN NKR

Azat Artsakh – Nagorno Karabakh Republic [NKR]
01 Aug 05

The peculiarity of the post-communist countries is the weakness of
their judicial powers, intended to defend human dignity although human
rights and freedoms are set in pride of place in the constitutions of
these countries. In this respect our republic is not an exception;
it does not have a constitution, instead it has constitutional
law. Why? Do we have a law which, if put in effect precisely
and completely, would improve the state of things? Yes, in our
republic we have these laws and on the whole they correspond to the
international standards. What is the problem then? We will try to
answer these questions. The basis of action of the judicial power is
its independence. The principles of independence of the judicial power
were maintained by the 7th Congress of the UN in 1985. These are the
independence of judicial bodies, freedom of speech and assemblies,
naming and qualification of specialists, conditions of service and
powers, professional secrets and immunity, punishment, removal and
dismissal. The independence of the judicial bodies is guaranteed
by the state and set down in the Constitution. The governmental
bodies and other institutions must respect their independence. The
judicial bodies deal with the cases impartially, relying on the facts,
in accordance with the law, without any restriction, pressure or
intervention (either direct or indirect). And are these principles
respected in our country? No, they are not. The examples are many,
and those who have somehow come in touch with this system will confirm
this. Judicial bodies were granted the right to settle all kinds of
disputes. Every citizen has the right to go to court. Now let us see
the situation in our country and begin with who the judges are. In
my opinion, the order of appointing judges cannot guarantee their
independence. By international rules a judge should be elected. He
or she must possess high morality and abilities. And the law should
provide for his or her independence, security, conditions of service,
age of retirement, etc. What about our judges? A small survey showed
that none of the courts works in the conditions provided for by the
law. The court houses inherited from the former Nagorno Karabakh
Autonomous Region are in a lamentable state. Absence of convenient
court rooms, special rooms for verdicts and decisions, transport and
modern equipment – this is the reality. One of the functions of the
court of law is the educational function, whereas nothing of the kind
may be concerned since the court sits in a small room which can hardly
admit a few people, where there is hardly any room for the flag and
emblems of the state and the judicial power, and finally there are
no special clothes for the judge in order for them to differ from
the other participants of the process. Immense means are required
to improve the situation, which are difficult to raise. Whereas one
of the branches of power is concerned; not only the establishment of
democracy in our country but also the prosperity of all the members
of the society depends on its action. By the international standards
three judges must preside over the case to ensure the independence and
objectivity of the court. In our country this is not the case. This
refers to the Court of Cassation as well but the crime code and the
civil code require three judges in only the Court of Appeal. This
may be the reason why the first instance decisions are changed at
the Court of Appeal when one judge sits in both courts who may be
mistaken or even dependent. The worst thing about this is that in
many cases there is intervention into the work of the court from the
outside. What about the law defending the judges? The law, in fact,
contains provisions defending the judges. The question is whether
these are effective or not. Another sensitive issue is whether the
litigants, the council for prosecution and the council for defence
are in equal conditions, and the interests of any of these are not
harmed. Our citizens are not aware of their rights and duties, which
results in a feeling of insecurity. Therefore the citizens resort to
condemnable means (bribery, protection, etc.). However, we believe
that this serious problem can be solved. Our society, though feebly
but walks towards a democratic society and it is the judges who must
become its moving force; the independence of the courts depends on
them. We think that it is the public prosecutor’s office that must
support the judicial power in this matter. The lawyers should not have
a formal participation in trials but seek to achieve equal conditions
for the litigants. Another serious problem is the barristers acting as
intermediaries. The mass media should focus on this urgent matter. It
is not a secret that the mass media in our republic hardly ever cover
trials and instead the society feeds on rumours. In the meantime these
problems need coverage which is the job of the mass media. And do the
judges seek for independence? Many will immediately give a negative
answer. What is the problem then? Maybe the concern is that the judge
may make an independent decision, and if it is altered, he or she may
have problems. Whereas according to article 31 of the law on the status
of judges, the fact of altering the verdict or the decree of the court
does not suppose any responsibility except the cases when the court
intentionally violates the law or acts unconscientiously. Thus, there
is only one answer to the question whether the judicial reform was
successful in NKR and the answer is negative. What are we to do then?
Is there a way out? Of course, there is. Most judges in our country
are experienced, respectable persons, and each of them would like
the judicial reform to be successful and the judicial power to find
its place. We understand that for an unrecognized country it is not
easy to solve the problem which requires immense financial means. But
it is not a secret either that we are a law-abiding people, and as
corrupted as Armenia or Azerbaijan. Therefore it is easier to carry
out a judicial reform in our country; we believe in this.

G. SAFARIAN.
01-08-2005