Armenian lawyers skeptical about court independence after constitutional reform

Emil Danielyan 1/19/06

Making Armenian courts less dependent on the government was a key aim of Western-backed constitutional amendments that were controversially enacted by the administration of President Robert Kocharian last November. But independent lawyers in Yerevan are skeptical about the reform's impact on Armenia's notoriously corrupt and subservient judiciary, expecting little positive change in the foreseeable future.

The amendments, which took effect last month following a disputed referendum, will place certain curbs on sweeping powers enjoyed by the president. These include a practically unrestricted authority to appoint and dismiss virtually all judges. While denouncing serious fraud reported during the November 27 vote, the United States and Europe say Kocharian's constitutional package will facilitate Armenia's transition to democracy and rule of law.

Senior officials from the Council of Europe have been particularly vocal in their support for its passage. Rene van der Linden, who heads the Strasbourg-based organization's Parliamentary Assembly, went so far as to warn Armenians in a statement ahead of the referendum that their failure to vote for the amendments would call into question their "commitment to Europe." For his part, Gianni Buquicchio, head of the Council of Europe's Venice Commission dealing with legal reform, told RFE/RL on December 13 that the reported vote irregularities will be more than offset by the "more balanced and democratic constitution." Armenia's judicial system, he said, will now be "much more independent."

Vartan Poghosian, a leading Armenian constitutional law expert, does not share such optimism. "Considering the perverse judicial traditions that have taken hold in our country, the amendments are not a decisive step towards increasing the independence and impartiality of the judicial system in the near future," he told EurasiaNet in an interview. "They can work only in the long term, if they work at all."

Zaruhi Postanjian, a young trial attorney, is even more pessimistic. "We live under a regime which is very far from the concepts of an independent judiciary and democracy," she said. "These half-measures won't make much of a difference."

One of the most important constitutional changes relates to the formation of Armenia's Council of Justice, a body which has the exclusive authority to nominate judges and initiate their removal. Until now, Kocharian headed the council and appointed all of its members giving him de facto control over the local courts. Under the amended constitution, judges themselves will elect nine of the 13 Council of Justice members by secret ballot. But that will happen only after the existing councilors handpicked by Kocharian complete their terms in office, a process that will take years.

But even the new Council of Justice will by no means be independent of the executive branch. Lawyers argue that the vast majority of Armenian judges who will elect it rarely rule against the government or acquit criminal suspects. They also usually rubber-stamp pre-trial detentions carried out by police and prosecutors. The latter, according to local and international human rights groups, routinely use force to extract guilty pleas and other "confessions" from arrested suspects. In a report made public in July 2004, the European Committee for the Prevention of Torture (a Council of Europe watchdog) said that individuals arrested or interrogated by Armenian law-enforcement bodies run a "significant risk" of torture, humiliation and psychological pressure.

There have been no reported cases in recent years of Armenian courts refusing to accept pre-trial testimony given under duress. The local courts earned additional notoriety in 2003 and 2004 by sanctioning brief imprisonments of hundreds of people arrested for their participation in anti-government rallies in Yerevan. Very few of them were given access to lawyers and a public trial. "You can count on your fingers the judges capable of handing down just rulings in this country," said Postanjian.

Postanjian is one of the attorneys representing the interests of Razmik Sargsian, an Armenian army soldier who is facing a lengthy prison sentence for a mysterious 2004 murder of two fellow conscripts. Sargsian, who reportedly nearly died of a hunger strike last month, insists that he admitted to and implicated two other soldiers in the killing after being brutally tortured by military prosecutors. Armenia's Office of the Prosecutor-General has refused to investigate the torture claims.

The amended constitution says nothing about the very important selection of judicial candidates that are considered by the Council of Justice. The list of those candidates has so far been exclusively drawn up and submitted to the council by Armenian Justice Minister David Harutiunian, who oversees written examinations for prospective judges and personally conducts oral interviews with them. Harutiunian, who is close to Kocharian, is thus believed to wield significant leverage against many judges. In a detailed 2004 study of the Armenian judiciary, the American Bar Association's Central and East European Law Initiative noted a "widespread public perception that this process is guided by bribery, nepotism, and partisanship."

Lawyer Poghosian's non-governmental organization, called Democracy, had lobbied for the addition of a constitutional clause that would place the entire selection process under the Council of Justice's jurisdiction. The Armenian authorities rejected the idea. They also rejected a Democracy proposal to spell out in the constitution concrete cases where a judge can be relieved of his or her duties.

Little wonder, then, that Poghosian's outlook for judicial reform in Armenia is less than favorable. "Without a real separation of government branches in Armenia we cannot even talk about judicial independence," he said. "The amended constitution contains some prerequisites for changing our highly centralized system of governance. But nobody knows when they will start working."

Editor's Note: Emil Danielyan is a Yerevan-based journalist and political analyst.

Posted January 19, 2006 © Eurasianet