EurasiaNet, NY
Feb 8 2008
ARMENIA: LITTLE NOTICED JUDICIAL REFORMS COULD HAVE ROLE IN ELECTION
Haroutiun Khachatrian 2/08/08
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."
Editor’s Note: Haroutiun Khachatrian is a journalist based in
Yerevan.