Friday, February 08, 2008
Armenia: Little Noticed Judicial Reforms Could Have Role in Election
Haroutiun Khachatrian: 02/08/08

Recent judicial reforms in Armenia could influence the conduct of the country’s February 19 presidential election. New legislation, which went into force at the start of 2008, has established three specialized courts to try civil, criminal and administrative cases. They will exist in parallel with so-called "general jurisdiction courts."

The newly created Administrative Court has unprecedented powers to examine electoral disputes in detail. The court is also authorized to have access to the ballots to verify the tabulation. Collegial hearings (with up to five judges) are required for cases such as the annulment of a candidate registration that are considered to carry heavier consequences for mistakes.

The powers of the Constitutional Court, the final judicial stage for resolution of electoral disputes, have also been extended. The court can now make a ruling based on a "tendency," or a pattern of electoral violations, even if the number of proven violations is insufficient to declare a vote invalid.

While ruling Republican Party of Armenia members have regularly lauded the reforms for supposedly strengthening the country’s judiciary system, the opposition has taken a different tact.

President Robert Kocharian has widely been assumed to control the country’s judicial process, though changes introduced by the 2005 constitutional referendum have removed him (and the minister of justice) from the Council of Justice, the body in charge of nominating judges and starting disciplinary proceedings against them.

Under reforms enacted in 2007, judges now have the right to defend themselves when challenged during a disciplinary action. The most sensational recent case has been that of Pargev Ohanian, who lost his post after ruling to release from prison two Royal Armenia company executives, who had been accused of tax fraud and smuggling after raising allegations about an alleged customs fraud scheme.

The case has been cited as an example of Kocharian’s ongoing influence over the judiciary system, though David Haroutiunian, a former minister of justice who was the reforms’ chief architect, said that Kocharian has no power by law to start the procedure. "The powers of the president are extensively cut by the constitutional amendments of 2005," said Haroutiunian, who now sits as chairman of the parliamentary committee of state and judicial affairs. "Many of the current presidential candidates are promising things that the president simply cannot do, as he has no such powers any more."

The 2005 amendments were the first realization of a process that began 10 years earlier with the passage of the 1995 constitution. The Council of Europe called on Armenia to overhaul its judicial system when the country became a Council member in 2001. The 2005 referendum was the result.

Over two years later, Armenian lawyers’ reactions to the reforms are mixed. Hayk Alumian, a board member of the Armenian Chamber of Advocates, expressed concern that the Armenian judicial system has been in "constant flux" for the past decade, making it difficult for attorneys to have a thorough understanding of procedures and codes.

"[N]one of us, judges, prosecutors or lawyers, has studied Armenian legislation in university. We are just dilettantes, as we only have read the recently adopted laws and attended a couple of seminars," Alumian commented. "This is quite insufficient for professional practice, and is very dangerous for justice itself."

Alumian terms the changes "revolutionary" rather than "evolutionary." The court system has been transformed from a three-tier to a two-tier system. Greater emphasis is expected to be put on courts at the bottom tier – the so-called "general jurisprudence courts" and civil, criminal and administrative courts. The appellate court will no longer perform fresh hearings, but rule on whether or not trials carried out by the lower-tier courts were correctly handled or not.

The former third-level court, the Court of Cassation, will ensure unified application of the law. Haroutiunian has given this reform round another "eight to 10 years" before another revision of the judicial system is needed.

But critics question what the current changes will mean for the independence of the judiciary. "A judge is now as dependent on the will of the chairman of the Cassation court, as he was dependent on the justice minister before," said Alumian.

The reforms, he continued, may bring about a situation where the judicial system is isolated from any external control, and becomes a self-reproducing "caste" or "clan."

Haroutiunian, a member of the ruling Republican Party of Armenia, is more optimistic.

"This legislation has good guarantees to ensure the independence of the court," he said in reference to the separation of the Council of Justice from the government. "What we lack is the political will," he said. Judges can initiate cases for attempts to exert pressure on them, but, to date, none have done so.

"[W]e have had no trials so far against any official who has attempted to influence the court," Haroutiunian continued. "On the day when the first official making such an attempt is prosecuted, we can say that the foundation stone of judicial independence has been laid."

Editorís Note: Haroutiun Khachatrian is a journalist based in Yerevan.