The organisation of courts
Expert Report of the CEPEJ/COE visit to Armenia April 14-17, 2009
2. The Armenian Justice Organisation
3. Problems with the dispensing of justice: information from before the CEPEJ mission
4. Recent Reforms
5. The accessibility of the justice system
6. The General Prosecutor’s Office
7. The relationship between judges and advocates
8. Judicial independence and judicial impartiality
- A defect in the process for the dismissal of judges
- The relationship between the first instance courts, the courts of appeal and the court of cassation
- Case allocation
- The role of the judge
9. Conclusion: Towards a trustworthy and reliable Armenian Justice System
The Minister of Justice of Armenia has invited the CEPEJ to conduct an evaluation of the reforms of the judicial organisation and related procedural practices. We, as a team of experts, do appreciate the openness with which we were welcomed and the eagerness of the ministry to have its reforms evaluated.
In this report the team of experts reports the results of its evaluation. During the three day visit, we talked with the deputy minister of Justice, the Head of the Court of Cassation, The Chief Public Prosecutor and his office, the head of the Chamber of advocates, the Civil/Criminal Appeal court and the head of the Administrative Appeal court. We also visited Kotayk first instance court and exchanged views with the president and several judges of that court. Furthermore, we had talks with representatives of 5 NGO’s in the justice & human rights fields, and we exchanged views with the head of the World Bank Mission in Yerevan, as well as with the former minister of justice (to date a member of parliament).
The visits were prepared by the ministry of justice in close cooperation with the COE representative in Armenia, Mrs. Silvia Zehe. The mission was very well organized and we encountered a high level of cooperation from everyone involved, for which we are very grateful. We highly appreciate the openness with which our Armenian partners in this mission shared their views and experiences with us.
For the preparation of our visit we received an English translation of the Armenian Constitution and the Judicial Code of February 2007. During our visit, we received some written English materials from the World Bank mission and from the NGO’s. As for the methodology, our current presentation is based on the interviews, the materials provided to us by Armenian officials, several NGO’s, the World Bank, and jurisprudence of the ECHR on Armenia and other COE documentation. We did not conduct a complete scientific research on the functioning of the Armenian justice system, and therefore the views and analysis in this report do not cover the complete reality of the Armenian Justice system. However, we have tried to systematically enquire about the aspects relating to the access to justice, the relationship between the courts in the three-tier system, and for measures to prevent (appearances of) judicial bias. In addition, we have asked for details of working relations between the courts and the executive branch and between the courts and the public prosecution service. We also asked our Armenian partners about any problem they wanted to share with us and which, according to them, needed to be addressed. In the beginning of May 2009, we received the Judiciary reform plans of the President of the Republic of Armenia.1
In this report, we will first briefly sketch the judicial system of Armenia as of the latest state of reforms. Because the newest reforms only took effect on March 1, 2009, the experience of our partners mainly relates to the time before that change. Based on information from the COE and the NGO’s from before our visit, we will briefly describe some of the major problems Armenia is facing in the dispensing of justice. After that we will report the results of our findings and our perception of the actual functioning of Armenian Courts and Judges in providing justice. We conclude this report with a set of recommendations for the Ministry of Justice to consider.
The organisation of Armenian Justice is based on continental law principles, but has explicitly made room for precedent as a basis for legal development. This should be considered as precedent within the context of codes for criminal and civil law, and within the context of the codes of criminal proceedings, civil proceedings, administrative law and judicial organisation, etc. Thus, statutory law limits judicial discretion, unless statutory law or its application breaches constitutional provisions.
The courts operate in a three- tier system for civil and criminal cases. There are 10 first instance courts in the regions and 6 first instance courts in Yerevan. First instance courts have 7-10 judges. Cases are decided by one professional judge. The soviet system of lay judges has been abandoned. Also trial by jury has been rejected in the justice reforms, as in a small country like Armenia everybody is somehow related to everybody else making the formation of an impartial jury very difficult
Appeals can be lodged at the court of appeal for general jurisdiction in Yerevan. The court of appeal for general jurisdiction for civil cases has 14 judges and a president. For criminal cases there are also 14 judges and a president. For Administrative cases appeals can be lodged at the Administrative Court, with jurisdiction for the entire country. This court currently has 15 judges. The civil and criminal appeal court and the administrative court are housed adequately in the same building.
The civil appeal court hears and decides appeals on the basis of the complaints of the parties. It can deal with cases in a variety of ways, from replacing the decision of the court of first instance to just sending the case back to the court of first instance. The criterion for sending a case back to the first instance court is the need for further judicial inquiry.
The administrative court hears and decides cases, not only based on the complaints of the parties, but also reviews the legality of the administrative acts beyond the contents of the complaint.
Decisions of the courts of appeal can be appealed for cassation at the Court of cassation. Decisions of the Administrative Court can be appealed against also at the court of cassation. Its’ task is explicitly defined to take care of the unified application of the law, by stating precedent. The court of cassation consists of separate civil and criminal chambers, with 10 judges each. Each chamber is chaired by a vice president, and the court of cassation in general is presided over by a president. Appeal for cassation against a decision of a court of appeal or of the administrative court can be lodged by any citizen. The Public prosecutions office can lodge an appeal for cassation in the general interest of the law. It should be noted that citizens may lodge appeal while being represented by any advocate in the country. The reason for this change, according to the head of the Court of Cassation, was to increase the accessibility of the Court of Cassation, especially compared to the previous situation where one had to choose one of 55 specialized and licensed lawyers and pay very high fees for their services.
On the National Level, a Prosecutor General is instituted. The office holder is appointed by parliament for a 6-years’ term, and may be re-appointed once. He has competences on a national level. His task is to prosecute, organize and supervise prosecution, preliminary inquiries and investigation in the entire country. Therefore, prosecution, including prosecution in the first instance courts, is considered a national activity. Local Public Prosecutors have the discretionary power to decide to prosecute or not, depending on the evidence of the facts and the seriousness of the case.
The Courts are organisationally administered by the Ministry of Justice, which is also a co-legislator (as a part of the Armenian government). Court personnel are hired by the ministry of justice.
There is also a Justice Council with competences in relation to the selection of candidate judges and disciplinary proceedings. The Justice Council is chaired by the Chief Judge of the Court of Cassation. It consists of 9 judges elected by the general assembly of judges, 2 legal academics appointed by the National Assembly and 2 legal academics appointed by the president of the republic. The work of the Council is supported by staff of the ministry of justice.
Judges are appointed by the President of the Republic on the recommendation of the Justice Council and their independence is guaranteed by the constitution. There is a Constitutional Court, but this is merely a guardian of the Constitution, and functions separately from the judicial organisation, although a final judicial decision in highest instance may be appealed against at the constitutional court for reasons of breach of a constitutional provision by the legal provision on which a (judicial) or other act was based.
The work of the courts is coordinated by the Council of Courts’ Chairmen. This is the major managing body of the judiciary. This council has the function of ethical watchdog for the judiciary, but it also plays a part in the drafting of the budget for the courts, and the courts’ publications; it sets the standards for legal education. It has a role in the human resources management of the judiciary and it also has supervisory functions towards the courts. It consists of the heads of all courts, including the heads of the two chambers of the court of cassation. This council is chaired by the head of the court of cassation, which plays a key role in the management of the judiciary. On his proposal, this council appoints the head of the judicial department.
Case Law of the ECHR
Based on the case law on Armenia of the ECHR, problems occur in respecting defense rights, especially in criminal and (sometimes) in civil cases.
In the Case of Nikoghosyan and Melkonyan v. Armenia, 6 December 2007, (Applications nos. 11724/04 and 13350/04), evidence was accepted by the ECHR that parties were not adequately informed of the time and date of the hearing of their appeal by the court of appeal.
In the Case of Paykar Yev Haghtanak Ltd. v Armenia 20 December 2007 (Application no. 21638/03), paragraph 49, the Court held that a legal provision prohibiting the verification by a court of the financial ability of a company to pay the court fee, is not compatible with the right stated in article 6, paragraph 1 ECHR. Implicit in this judgment is the reproach that the Court of cassation did not refuse to apply the legal provision at hand by referring to article 6 ECHR:
“In this respect, the Court notes that the Court of Cassation did not examine the applicant company's request for deferral in which the applicant company had made claims about its inability to pay. Therefore, the Court of Cassation had no direct knowledge of the applicant company's financial situation. Moreover, as already indicated above, the Court of Cassation was prevented from making any assessment of the applicant company's ability to pay by the express provisions of the law ….. The Court considers, however, that such a blanket prohibition on granting court fee exemptions as contained in those provisions raises of itself an issue under Article 6 § 1 of the Convention. The Government's argument that a commercial entity should, unless it had been declared insolvent, have sufficient means to pay a court fee, is hypothetical (see, mutatis mutandis, Jedamski and Jedamska v. Poland, no. 73547/01, § 63, 26 July 2005, and Teltronic-CATV v. Poland, no. 48140/99, § 57, 10 January 2006), and therefore does not affect the Court's opinion on this matter.”
In the Case of Kirakosyan v. Armenia, 2 December 2008, (Application no. 31237/03), the ECHR held that the applicant was … taken to and kept in a police station – without any contact with the outside world – where he was presented with a charge and in a matter of hours taken to a court and convicted. The Court concludes that the applicant did not have a fair hearing, in particular on account of not being afforded adequate time and facilities for the preparation of his defence. Therefore there was a violation of article 6, paragraph 1 of the Convention. Galstyan v. Armenia (no. 26986/03, § 26, 15 November 2007).
In the Case of Harutyunyan v. Armenia, 28 June 2007, (Application no. 36549/03), the court held that there had been a violation of article 6, paragraph 1 in relation to article 3 of the convention. The applicant and several witnesses had been tortured to confess and to give evidence. Despite the fact that the police officers were convicted by another court, the court dealing with the case of the applicant accepted the evidence produced. Also in this case the indirect reproach of the ECHR is that the judges initially examining the case were not critical at all of the evidence delivered by the police.
Sometimes, defence rights are directly violated, such as in the criminal cases. But occasionally in civil cases administrative errors occurred, in fact preventing a party from participating in the hearing of the case. The reproach of the ECHR in all cases is that judges did not adequately check evidence, or did not take a stand vis à vis the prosecutions office.
Commissioner for Human Rights
Also the Commissioner for Human Rights refers to inadequate judicial independence at the local level.
“However, it appears that much still needs to be done to ensure adequate implementation of the new legislation and improve the public trust in the judiciary. It was reported that in practice judges were often intimidated and were concerned about their safety. They also seem to fear allegations of corruption and other problems from prosecutors and public officials when taking unwanted decisions. Improper influence by public officials and in particular prosecutors should not be tolerated and judges should themselves protect their integrity.”2
The Commissioner for Human Rights found difficulties for defendants in being able to exercise their defence rights. Furthermore:-
· intimidation by prosecutors and policemen in relation to judges;
· the lack of transparency of court proceedings;
· the fact that judges can be directly approached by anybody;
· the poor state of the court buildings;
· the fact that cases are being heard ‘in camera’;
· the insufficient recording of court hearings;
· and therefore lack transparency,
all seem to be continuing problems that were notified to us before our visit to Armenia.
Internet sources provided articles about a judge having to face disciplinary procedures because of the content of his judgements, e.g. the release of a suspect from prosecution.3 Also the Armenian Ombudsman has reported on lack of judicial scrutiny in criminal cases and in cases against public institutions.4
However, according to the Judicial Reform Index of ABA Rule of Law Initiative, considerable improvements have been achieved up to 2008, but they are mainly related to the formal aspects of judicial independence.5
Armenia has undergone various justice reforms since the Constitution entered into force in 1995, and was substantially changed in 2005. The first reform took place in 1998, the last reform to date entered into force by March 1, 2009. Reading the Constitution, but also the Judicial Code, gives the impression that regulations are quite detailed. The deputy minister of justice explained to us that civil servants, and also judges expect clear guidance from the law. Also for that reason, the Ministry of Justice (and foreign aid agencies) have followed the strategy of first changing the law (constitution, code of criminal proceedings, code of civil proceedings, administrative code, and judicial code).
It is worth noting that the situation described here, entered into force on March 1, 2009, whereas the previous change took place in 2007, when the judicial code was adopted. In 2007 a system of specialized courts of first instance was introduced, i.e. 3 separate courts were functioning for civil cases and 3 separate ones for criminal cases, with competences on a territorial basis split between the north, the centre and the south of the country. This criterion for allocation of cases between courts was not very convenient for the citizens, who sometimes had to travel far to reach the competent first instance court. This was changed in 2008, taking effect on March 1, 2009. The change entailed the institution of 10 regional first instance courts for both criminal and civil cases, and 6 such courts in Yerevan. These courts now have judges specialized for civil and for criminal cases. Furthermore, the existing system of mandatory representation by authorized lawyers was abolished, therefore citizens do not need such an assistance or representation any more.
As of January 1, 2008, the Administrative Court, as foreseen in the judicial code of 2007, became functional.
We use the term ‘accessibility’ here in its wider sense. Under this header we are concerned mainly with the conditions to be fulfilled in order for those seeking justice to actually find their way to filing a case. We deal here with the court buildings, but also with the services of justice organizations to their customers, and with the way courts and judges deliver justice, so as to make it useful to file a case in court to seek legal protection, and with the role of advocates.
The state of the court buildings
The visit to the court building of Kotayk region in Hrazdan, showed its’ overall poor state. It has poor court rooms and no heating in a place where in winter temperatures can drop to - 30 degrees Celsius. Seats were of different kinds, partly ragged cinema chairs.
Systems to record court hearings were absent. The World Bank has invested money in the reconstruction of the first instance court buildings in Yerevan, and a second program for the reconstruction of 10 court buildings in the regions is under way. The judges we talked with asserted in winter the number of cases was very low, because of the cold, and what court hearings took place were very short.
The condition of the buildings of the appeal courts and of the court of cassation is quite good. The contrast with the court building of Kotayk region is noticeable.
Improvement of the regional court buildings should be considered a priority.
The new rules of procedure make it possible for those seeking justice to address any court without the representation of an advocate. During our talks with different partners in the Armenian justice system we developed the impression that some judges have an open eye for the difficulties of the parties who file a case without a lawyer. Often a friendly, pre-trial solution is sought for, which often is successful. This makes it very important that the general public is properly informed of what the courts can do (and what they not can do), to provide justice.
The court of cassation must be addressed by any advocate.
Reach-out to the public
A convincing vision on how to reach the general public was given by the chief of the administrative court, with leaflets and posters. The civil appeal court and the president of first instance Kotayk court in Hrazdan relied more on the advocates to inform those seeking justice. A judge of Kotayk court asserted she did participate in a program to instruct schoolchildren of the function of the court. The head of the World Bank mission in Yerevan told us they had financed the development of a court- talk show, “My Rights”, which was a major success. TV-stations have produced the same show for several seasons now, generating a large response by the general public.
The judiciary needs to develop a structured approach to inform the public about the possibilities of going to court.
We had a debate with the president of a court about the way cases could be refused and returned to the applicant. The debate concentrated on the question if refusals of a case are registered. The president said, “Often when citizens file a case without a lawyer, the file is not complete. They need to pay the court fee, but also produce different documents and proof. We do not register a case when the file is not complete yet, but we give the party a clear notice of what is needed to complete the file”. Objections concerning the transparency of such refusals were not met with understanding, as our partners told us these actions were intended to help the parties in order to have their case filed properly.
We hold that in order to make certain that justice is not refused arbitrarily; the courts need to be transparent on all the cases that are filed at the court, in order to show that access to court is equally open for all citizens.
Judges in other discussions were convinced that they need to make a far greater effort to explain their decisions to the general public. However, they also had a preference for advocates to represent and help the claimants.
The administrative court made a good impression by demonstrating its program of open days, court sessions being attended by law students, posters and leaflets summarizing administrative proceedings, the publication of jurisprudence on a website, the presidents’ plan to produce a book with the most important judgments so far, etc. Also the fact, that the court has dealt with about 10.000 cases in its first year of existence shows there is a need for proceedings against administrative bodies. A question is if the court should deal with debt collection for public bodies (e.g. taxation), also with a view to the possibility that the court, because of its success, may risk to having to deal with too many cases in the near future.
The courts have a website, www.court.am, which provides basic information to the general public in Armenian. Contrary to the English version, the Armenian version seemed to be updated regularly. Internet access is not widely available in Armenia, therefore this information should be provided using more traditional means of communication (leaflets, posters, TV, newspaper advertisements etc.). We think the Council of Courts Chairmen could coordinate a program to continuously inform the public of the services a court may provide. Informing parties of their possibilities and procedural options in court proceedings may also be considered a task of the court service. Next to that, advocates can fulfil an important role in representation of parties in court. Advocates can also have a role in informing clients of the possibilities to bring a case to court.
The General Prosecutor’s Office (GPO) is a national agency separate from the courts, which organizes prosecution and oversees criminal investigation at the local level. It does also oversee several specialized services, for example for tax related crime and the state security committee (e.g. espionage, money laundering, illegal border crossing). The General Prosecutor is appointed by the national assembly upon recommendation of the president. The powers of the General Prosecutor are defined in the constitution. The GPO thus is an autonomous, constitutional body, which has discretion to decide if a case will be prosecuted or not.
The General Prosecutor declared that the GPO is an autonomous, constitutional body, which has discretion to decide if a case will be prosecuted or not. Following almost 20 years of reforms, the GPO is bound to protect the interests of the state in court proceedings. So, if a judgment appears to be illegal, the GPO can appeal in the interest of the state. It starts criminal proceedings but also oversees the execution of criminal judgments. In that function the public prosecutions office also protects the interest of convicts.
An independent anti corruption body also exists. Its head is appointed by the president on proposal of the prosecutor general. This body has its own investigative powers and it reports directly to the president and to the national assembly.
To date, the GPO tries to actively supervise the public prosecutors and the criminal investigators in the region. Each prosecutor has full competences for prosecution. Several specialized divisions exist on the national level which is also intended to support local prosecutors, as the GPO thinks it not reasonable that a local prosecutor knows everything. A case can be transferred to a prosecutor from a national team who will take over the local role in a concrete case. In this manner, they also try to reduce ‘local influences’ on the trial. A case put under pressure of some local authority can be dealt with more objectively. The GPO also monitors the successes and failures of individual prosecutors and in what kind of cases. This may be the basis for becoming a specialist at the national level, by following several courses. All in all, the General Prosecutor’s Office gives the impression of a rationally operated organization.
A question that remains unanswered so far is, in how far the GPO has been successful in preventing local prosecutors and policemen from intimidating parties and judges.
A comment on the current position of the GPO is that it carries a huge concentration of state power, and we question if some of these overseeing powers should not be transferred to others.
We were informed by the head of the chamber of advocates that the relationship between judges and advocates is something to worry about. On the one hand, a practice has evolved from Soviet times where advocates can approach judges freely and uninvited. This has also to do with the open design of the court buildings, and poor court room conditions. Having a court hearing ‘in camera’ is often much more comfortable, but may easily interfere with basic rights like equality of arms, especially if only one party is represented there. We assume this practice is also related to the intimidation of judges and advocates reported by the Commissioner for human rights, even although we also heard that judges are sometimes ‘called by phone’ by interested parties, in order to stress their demands. These practices can cause the public to perceive justice as biased.
A major complaint is that judges hold lawyers in contempt, based on article 343 of the Criminal Code, if they come up with juridical reasoning that appears too sophisticated to the judge. Judges allegedly regard such reasoning as disrespectful, whereas lawyers complain that many first instance judges are not qualified for their job. As a result advocates walk out of the court room, according to the head of chamber of advocates. This, of course, results in depriving parties of a fair trial. The chamber of advocates has supported advocates who filed a complaint against this judicial behaviour at the Justice Council, but the Council found no grounds to impose disciplinary sanctions on the judges. The question may be asked whether such a legal provision such as article 343 of the criminal code interferes with the right to a fair trial.
We have encountered allegations from NGO’s but also from the Head of the Chamber of Advocates that the court of cassation is not transparent in its motivation of decisions as to why it decides to nullify a case or not.
Next to this, the court of cassation used to accept only a minority of appeals, or rather rejecting the appeal with the sole motivation that the nature of the case did not raise relevant legal questions. Advocates have appealed to the constitutional court, in order to force the court of cassation to come up with adequate reasons and explanations for its decisions. According to our interlocutor this complaint was upheld, but the court of cassation has refused to comply.
Therefore advocates cannot be certain of how they have to give reasons for the line of defense of their client in court proceedings.
We have received 9 elaborate decisions of the Court of Cassation, in an English translation, which we examined on clear judicial reasoning:
• Levon Ghazaryan versus the Republic of Armenia, EKD/0057/12/08, March 30, 2009 (criminal case on execution of sentence)
• General Prosecutors office versus Garush Madatyan, the ESD/0029/01/08, February 17, 2009
• Vachagan Tamazyan versus Hrachik Tamazyan. #3-1(VD) 2009, February 13, 2009 (civil case on timely delivery of notification of court hearing)
• Julieta Sargsyan versus the Republic of Armenia #3-3 (VD) 2009, February 13, 2009 (civil case)
• State versus Taron Hakobyan , VB-115/07, July 13, 2007 (criminal case);
• Armen Shahbazyan and Kristina Tonoyan versus Shengavit Territorial Unit 3-65(VD), March 2, 2007 (civil case);
• State Committee of the Real Estate Cadastre of the Republic of Armenia versus Levon Ghazaryan 3-2440 (VD),2006, December 21, 2006 (civil case);
• Vanadzor Mayor versus “ArmPost” CJSC, civil case number 3-765 TD, September 28, 2006 (civil case);
• Vanik Salartzortzyan versus the State, VKB - 180/05,2005, July 22, 2005, (criminal case)
One may agree or disagree with these judgments, but we found that the allegations of the NGO’s and the head of the chamber of advocates are not substantiated as far as these nine judgments are concerned. On the contrary, the reasoning in these judgments has enough substance to debate the reasoning amongst legal professionals, e.g. in law schools.
The only remark one can make from a transparency perspective, is that sometimes the text is not explicit who the party was that did not file the cassation complaint, and what the defence of that party’s position entailed in the cassation proceedings. This holds, not only for criminal proceedings, where the arguments of the General Prosecutors Office are not always clearly shown, but also for civil proceedings. We do not know in how far this was related to the special character or circumstances of the cases at hand.
Judicial independence has a formal, institutional connotation, but it also carries the meaning that judges should have an independent attitude. Without this mentality, all the rules protecting judges against undue interference with their action, are not enough; they only create the necessary preconditions for judicial independence. In addition to the rules, other conditions must be fulfilled in order to ensure the formal independence. For example, parties in a case must not behave in way that intimidates a judge. This may seem self-evident, but it is not. In addition to these conditions, judges must avoid appearances of bias. Judges demonstrating their independence enhance public trust in the judiciary.
8.1 A defect in the process for the dismissal of judges.
The presidential decree containing Strategic measures of judiciary reforms 2009-2011 contains a peculiar paragraph on the balancing of power, which we cite here in full:
The measures necessary for ensuring an independent and accountable judiciary are as follows:
1) Improve the current procedure for appointment of judges through the principles of the operation of the Justice Council, as well as ensuring transparency and revising the procedures for preparing competence and promotion lists.
The main precondition for having independent courts is an unbiased, fair and transparent system for appointing judges, which will improve public trust in the court system.
The revision of current procedures for appointment of judges is also proposed by the EU commission in its current report on Armenia titled “Implementation of the European Neighbourhood Policy 2007”;
2) Improve the effectiveness of the principle of separation and balancing of legislative, executive and judicial powers.
The main leverage for balancing the executive power with the judicial power is the fact that the executive power (as are presented by the Minister of Justice of the Republic of Armenia) has the jurisdiction to initiate disciplinary measures against judges in first instance and appeals courts. As for the judges in the Court of Cassation of the Republic of Armenia, the Minister of Justice does not have the jurisdiction to initiate disciplinary measures, which is a barrier to the effective application of the principle of balancing.
On the other hand, ascribing this power to the Minister of Justice, does not interfere at all with the independence of the judicial power, since, eventually, the power to apply disciplinary sanctions against judges is invested in the Justice Council of the Republic of Armenia and the power to propose the termination of the authorities of judges is invested in the President of the Republic of Armenia.”6
Considering the stories we heard of pressures being exercised on judges, also from within state-institutions, the selection and appointment of judges under the responsibility of the executive (minister of justice, president of the republic), together with the possibility for the Armenian legislative to change the law in case of final judgments with which the government does not agree, are sufficient to ensure the balance of powers among the executive, the legislative and the judiciary. From that perspective, disciplinary proceedings and dismissal of judges for reasons of misbehaviour of judges should be an affair of the judiciary itself. The highest court should be made competent for the dismissal of judges.
Two possible situations can be discerned here. First, the dismissal of judges not belonging to the highest court because of severe misconduct. In cases of severe misconduct according to the rules of ethics, we advice proceedings against such a judge can be started by the justice council before a special chamber of the court of cassation. Second, the dismissal of a judge of the court of cassation, because of severe misconduct according to the rules of ethics. We advice that in such a case the Justice Council should propose the dismissal of the cassation court judge to parliament.
This is an important issue, because the general public in Armenia does not seem to trust the judiciary, mainly because it suspects judges are guided and influenced by the President, the minister of justice, the police or the public prosecutor, or otherwise. We strongly advise the Armenian government to take away all formal reasons that may be perceived as even the slightest appearance of bias of the judiciary.
8.2 The relation between the first instance courts, the courts of appeal and the court of cassation.
The division of labour in the court system of Armenia lives up to the expectations one might have from a continental law system. We have noticed that the most recent reforms consist of a merger of criminal and civil courts in the newly formed first instance courts. On the local level the courts hear civil and criminal cases, on the national level there is an appeal court for criminal and civil cases, and there is a specialised court for administrative cases. From the civil chamber of the ordinary appeal court and from the administrative court, appeal for cassation can be lodged at the civil chamber of the court of cassation. From the criminal chamber of the ordinary appeal court, appeal can be lodged for cassation at the criminal chamber of the court of cassation.
The question of the opportunity to develop further specialisation within the current judicial system remains unanswered. Specialisation on the national level is a tool of the Public Prosecutions service to bring national specialists in regional court cases, so as to reduce ‘local influences’ on these cases, and to provide for better knowledge and skills in the region.
Coordination of allocation of cases between courts
The Ministry of Justice received many complaints about the inadequate functioning of courts. In one case, a person might need to address the civil, the criminal and the administrative court. This could and did lead to different and uncoordinated outcomes at first instance. This problem was particularly acute, because judgments entered into force immediately. Under the current system, judgments are enforceable one month after being issued. Thus, the Court of Appeal, but also the Council of Chiefs of Courts can find a solution for cases in which a public decision is quashed by the administrative court, and the consequences of this decision would need to be addressed by a civil court. The Council of Courts Chairmen decided the consequences of the nullification of a public decision should be dealt with by the Administrative Court. It thus shows that the Council of Courts Chairmen can play an effective coordinating role to solve inevitable conflicts of competences between courts.
Nevertheless, where administrative disputes occur, there might be a problem concerning the competence of the court. In the example given concerning the ownership of immovable property, the relative importance of the administrative and civil aspects of the dispute determines the jurisdiction, the case being assigned to the court competent for the prevailing one of the two components. Efficiency of the judiciary is served by a system of competencies that leaves as little ambiguity as possible...
The role of the Justice Council
The role of the Justice Council is mainly related to appointment of judges (Human resources, career decisions) and disciplinary proceedings based on judicial ethics.
A debate is going on, as to whether a judge should be punished for a judgment that is reversed in cassation. Such action could be based on article 12 of the judicial code, on ‘Limitation of the Performance of Certain Types of Activities by the Judge’. In paragraph 6 it states:
“Criminal prosecution of a judge for the latter making a manifestly unfair judgment, decision, or other judicial act out of pecuniary or other personal motives may not be instigated, unless the act has been quashed by a higher-standing court.”
Although we can imagine that sometimes judges can make fundamental errors, this seems not to be the way forward. The judicial code has ample possibility to start disciplinary proceedings if a judge has acted against the rules of ethics as defined in the Judicial Code. If a judge needs to be punished at all, it is because of a breach of rules of ethics. The burden of proof lies with the Ethical Committee of the Council of Chiefs of Courts. This may be explained as follows. Judges, and especially first instance court judges often need to address circumstances that are the result of societal change. They need to be able to come with new and fitting solutions for new problems. Any form of pressure or even repression will be at the detriment of their contribution to the development of the law. Of course, judges acting in a professional and responsible way are required to follow the lead of the Court of Cassation in their decisions and in their reasons for these decisions, as far as precedent fits specific cases. But they will also need to be able to contribute to the development of the law. Cases may be similar, but are rarely equal. Judicial discretion should be respected within these parameters and judges must not fear incrimination. If a question of judicial competence arises, that would be a matter of appeal and cassation by the parties or appeal for cassation by the Prosecutor General. As far as courts’ jurisdictions are at stake, the Council of Courts Chairmen can coordinate.
The role of the (civil) appeal court
The appeal court for civil and criminal cases is still in the process of sorting out its role between the court of cassation and the first instance courts. The judges took the position that they need to follow the legal rules, but were uncertain of their role where the law is not clear. This court decides about 3000 cases annually, where the first instance courts deal with 15000- 17000 cases annually.
The appeal court judges we exchanged views with, were of the opinion that they could not exercise power over the judgments of the first instance courts, because the power of precedent lies with the court of cassation. According to them, the law does not provide for a clear role of the appeal court and they are not used to Anglo Saxon precedent. It is clear that they do not know how to deal with judicial discretion.
We reacted to this position, saying that the court of appeal must follow the lead of the court of cassation, but that, nonetheless, the appeal court may develop its own jurisprudence within that parameter. It is inevitable that for new situations the court of appeal takes a well reasoned decision that nonetheless may be corrected later by the court of cassation. In reply the judges said they had bundled their most important decisions, but they needed also systematization. They lose their way in the growing heap of cases. For this reason they may be in need of a database with a search facility.
We recommend that the appeal court develops its own jurisprudence and selects and presents its own of lead cases to inform first instance courts and advocates. However, we also advice they do this within the boundaries of precedent set by the court of cassation. Above all, the court of appeal should define its role and mission relating to parties, advocates, suspects and to prosecutors, and relating to the court system of Armenia. This vision should be communicated to the public at large.
In civil cases the applicable legislation obliges the court to limit its assessment of the case to the legal motifs raised and the line of defense presented by the defendant. The civil Chamber of the Appeal Court considers this situation as a serious defect in the system, especially now that parties can file a complaint or an appeal without a lawyer and thus often do not dispose of the necessary legal knowledge to do so effectively. The court noticed that severe mistakes were frequently made at first instance, but not raised in the appeal. Then the court has no choice but to ignore the mistakes and concentrate on the motives raised. It would be preferable either to give the court competence to help the appellant in filing a good complaint or make representation by an advocate a prerequisite. If the latter solution were chosen however, a system of publicly organised legal aid would need to be instituted.
The administrative court
The administrative court is a first instance court for the entire territory of the Republic of Armenia. It exists since January 1, 2008. This court has, of course, a position quite different from the other courts, as its task is to assess cases filed against public decisions. Administrative law was developed with the help of German legal experts. The court takes an objective control approach on the assessment of complaints. This means that it will also review the legality of decisions of the administration regarding aspects not complained about. The burden of proof lies with the administrative body and not with the citizen. The administrative procedure act does not prescribe that administrative decisions should be appealed first at the same or e.g. a higher administrative authority, before lodging an appeal at the administrative court. The head of the administrative court stated such a modification would be a substantial improvement that would allow better use of the capacity of the administration.
The administrative court takes already about 10000 decisions annually, 5700 complaints against administrative decisions and 4000 orders of payments for penalties. Before January 1, 2009 the court had 10 judges, but now they have 15 judges. This may be considered a major success, and the head of court expects a further increase of the number of cases. On average every judge makes about 600 judgments annually, which is quite a workload. Because the influx of cases is growing, the head of court is concerned about the size of the courts’ jurisdiction. They have e.g. expropriation cases, but also the payment order cases. A system of administrative fines does not exist yet.
We were informed that about 2/3 of the appeals are successful. This indicates the need to improve juridical knowledge of administrative bodies in Armenia. The head of the Administrative court considers it also the responsibility of the administrative court to inform the administrative bodies on how to apply the legal rules, as they still make a lot of mistakes. For the administrative court it is important to develop a mediation practice. Also the court wants to be informed of the follow up of its decisions. By experience most court decisions are not implemented. Procedures for damages against unwilling administrative bodies may improve this. Also civil servants could be sanctioned for not implementing court orders, according to the head of the administrative court.
We think it peculiar that the administrative court has to deal with payment order cases. This would normally be a task for the civil courts and bailiffs. Considering the expected grow in case load for the administrative court, a solution is advised.
A debate is developing as to whether the court of cassation should create a separate chamber for administrative law cases, or should a court of appeal for administrative cases be set up next to the court of first instance. The head of the administrative court favours a separate chamber in the court of cassation. The head of the Court of Cassation is against the establishment of a separate second instance court for administrative cases, as this would cause proceedings to last far too long.
Considering the actual case load of the administrative court and its size, for the time being no organizational innovations are necessary. However, if the administrative court would become so successful that it has to handle e.g. 20.000 cases annually, a solution must be created to deal with the case load. Every solution should strike a balance between the long term coherence of the administrative law structure and the short term effectiveness of justice.
Whatever the solution, it would be essential to keep judges disconnected from local or regional politics, while maintaining the objective control approach in administrative court proceedings. From this perspective, and considering the difficulties of the first instance courts to prevent appearances of bias from occurring, any initiative to install administrative chambers in the first instance courts would be a bad idea. There are other solutions possible, e.g. judges of the administrative court travelling to hearing locations in the regions.
We were impressed by the juridical and organizational competences as shown to us by the head of the administrative court. Perhaps the administrative court can function as a role model for other courts in Armenia. It is foreseeable that the court may double its case-load in a few years. We advice the government of Armenia to enhance this success, and to develop timely solutions for dealing with the growing case load of this court.
The role of the court of cassation
Legally, the court of cassation is the highest court in non-constitutional cases. It has the power of precedent and consists of a civil and a criminal chamber. The head of the court of cassation explained that the decision to open appeal to citizens without a specialized advocate was taken because of the limited number (55) of advocates that were allowed to file a case at the court of cassation. They charged very high fees for their services making the court of cassation less accessible.
Appeals against the decisions of the administrative court are decided by the civil chamber of the court of cassation. The head of the administrative court indicated he would like to see an administrative law chamber in the court of cassation. It is, however too early to evaluate the functioning of the civil chamber of the court of cassation in administrative cases, as the administrative court functions only since January 1, 2008.
The court of cassation is the court that should lead the development of the law by means of its decisions on cases appealed against from a decision of the Appeal Court or from the administrative court. Whereas we did not see any judgment of the court of cassation in an administrative case, we have read 5 judgments from 2005-2007 in an English translation. In those judgments, the court of cassation has given well reasoned decisions on issues of law.7
8.3 Case allocation
Case allocation in Armenia is a responsibility of the courts’ presidents. Considering our conversation with judges of Kotayk court, the president uses simple criteria, like the current workload of a judge, the experience and the specialization of the judges. This means that cases in principle are allocated informally to judges.
The courts in the region may have several court locations. In the first instance courts, usually a judge sits in a location for one year. Sometimes only two judges are available for one location of a court. Application of case distribution principles does not make a lot of sense in such a situation, unless there are remarkable professional differences between the judges.
The ideas for case allocation in relation to policies to prevent (appearances of) bias for judges are not yet developed in Armenia.
In several European states, like Italy and Germany, the right to one’s legal judge is a basic civil right, directly related to the right to a fair trial. Random case allocation is considered an extra safeguard against judicial bias. Of course this only may take effect, if case allocation plans are drafted timely and transparently. Especially German courts have developed an efficient, flexible and transparent way of case allocation planning. Case allocation plans can be found on the websites of the German courts. A point of consideration relating to case allocation is specific judicial expertise.
Transparency is a key word here. This means that the schedule of court hearings with cases and judges should be published. However, this only makes sense when there are a considerable number of judges. In Armenia, most first instance courts are relatively small (up to 10 judges). In combination with the tradition, that judges are appointed to a specific regional court, this causes an easy relationship between local society and the local judiciary. This would make it relatively easy to expose judges to undue efforts to influence their decisions, also when cases are randomly allocated to the judges of a court. In the current state of development of the judicial system of Armenia, it is advisable to combine random case allocation to judges, with a relatively high frequency of rotation of judges over courts in a certain area. The aim of this is too loosen the relation between the judiciary and local society, as this seems to be problematic.
Given the relatively small scale of the courts, and the appointment of judges to a given court, the Armenian government might consider a more flexible allocation of judges to courts and auxiliary court locations, in order to enable a more random allocation of cases and judges, possibly by the Council of Courts Chairmen. This would help to disconnect judges from local politicians, police-authorities and other powerful persons seeking to illegally influence the judges’ opinion on the case, and it would also create possibilities to develop random case allocation mechanisms.
8.4 The role of the judge
During discussions with judges we have noticed quite some uncertainty as to their function and role in the wider judicial process. Judges are not sure what their societal function is, nor are they certain of their function in the dispensing of justice.
This is aggravated by attempts to keep judges in uncertainty as to what kind of reversed judgments are ‘disciplinary punishable’, under art 12, paragraph 6 of the judicial code. We have the impression that sometimes even undue pressure is put on judges by intermingling ethical rules for judges, breach of which may lead to disciplinary sanctions or even prosecution, and professional differences in opinion on how the law should be applied.
We think it is a sine qua non for a positive development of the rule of law in Armenia that such abuse of power is stopped. Disciplinary sanctions should only be applied to a judge in case of misconduct. Giving a judgment which may cause discussion as to its legal correctness is not a matter of discipline. If this happens more or less frequently, the first question to ask should be what mistake was made in the selection of this judge and the second one is about the initial and continuous training of the judge.
Judges seem to be all but independent and impartial, because they lack a critical attitude, especially in criminal cases. They do not seem to take the initiative to check or control evidence as presented by the police, and they do not adequately guarantee defense rights to suspects in criminal cases. Thus, criminal law can be abused by the police and prosecutors, to have persons who use their civil rights, like freedom of speech, and freedom of assembly (demonstration) detained and convicted.
This shows how essential the role of a judiciary is to fulfil its counterbalancing tasks. It is an essential task for the Armenian government that judges throughout all layers of courts are enabled to play that role, without fear of intimidation or of abusive threats of proceedings before the ethical commission of the Council of Court Chairmen.
It appeared to us that the main problem of the Armenian Judiciary is that judges do not have the confidence to (pro) actively protect defense rights and fair hearing rights of parties in their country. To develop and support such an attitude amongst the judges at all levels is the mayor challenge for the Armenian government in the field of justice administration in the years to come. We think that the judicial school can have a leading role not only in training judges to deliver legally sound judgments, but also to provide for pastoral and collegiate care, so that judges feel supported and dare to play their constitutional role in the legal state.
The present situation of the Armenian justice system, shows that a legal framework has been created, in which the justice-system can fulfil its societal and institutional functions. We do not think in this regard however, that most legal reforms of 2008 as far as criminal cases are concerned, make a lot of difference in comparison with the reforms of 2007. Our findings as a result of our mission relate to how the current legal framework is actually operated.
We think that the current actual functioning of the justice system can and must be improved. This is not so much directed at further changes of the relevant legislation. It is foremost an issue of attitude of all judges from the lowest to the highest courts. There should be no misunderstanding that judges can only be disciplinary charged as a consequence of serious suspicion of misconduct (breaching the rules of ethics in the judicial code). Judges at all levels should be stimulated to come up with written, syllogistic reasoning for their decisions, together with a serious evaluation of the evidence delivered to the court in the case at hand as a constitutive part of their judgments. The Court of Cassation has the lead in showing how the law should develop within the framework of codes and legislation, and the lower courts should follow it.
Training of knowledge and competences for all members of the judiciary therefore is of the highest priority. Next to information and instruction on recent legal developments, training sessions for judges will create opportunities for colleagues to meet and to exchange and discuss the worrisome cases they had to decide. Thus they may find mutual professional support for their work. Next to that from within the judiciary there is a need for pastoral care. This may support the judges in independently delivering proper justice, also in relation to the Council of Courts Chairmen and the Justice Council. The existing judicial training school can play a key role in this.
Fighting corruption and the appearances thereof, also in the judiciary is an urgent necessity. Next to repression of the heaviest abuses, it is also necessary to create a working climate where quality judicial work can flourish. Fighting corruption is a matter which has many sides; there is no such thing as an easy tool to solve the problem. A comprehensive system of prevention and control, dealing with for instance restricted access areas in courthouses, continuous operating audio and video recording systems (not to be switched off by the judge), hearing with always a clerk present, no ex parte procedures, adequate salaries of judges, training and education, complaints procedures, effective controls by the courts’ presidents, adequate information provision to the public and the like should be in place. The right to a fair hearing, as substantiated in article 6 ECHR, demands that a court hearing be held in public, and thus that the hearing and its context (case allocation, planning, record) are transparent for the public.
For the development of the law, the existence of a juridical debate on how the law should be applied is a necessary precondition. For each specialization in the courts there should exist an independent journal where the most important judgments of the courts of all levels are published and commented upon by advocates and law school academics. As far as we were able to check, such informational institutions do not yet exist in Armenia. The basic idea of starting such institutions is that it will not only enhance the quality of the juridical professionals inside and outside the courts, but that it will also contribute to the development of the law. Part of the development of the law is that sometimes judgments may be criticized and sometimes supported by legal commentators. Progress is established where different solutions are presented to solve the same juridical problem. It is up to the lower courts to provide for solutions, with the court of cassation to decide in last instance which solution is best in a certain case.
For any continental justice system, the conditions for external effectiveness are an adequate access to justice and an independent application of the law by judges. This also requires an adequate knowledge and skills of judges and advocates, and an effective organization for the execution of court decisions.
Access to justice depends on the information provided to the general public, the physical accessibility and functionality of court buildings, the timeliness of court decisions, the absence of (appearances of) bias in court proceedings, but it depends also on the good help provided to the parties in filing and defending their case, either by an advocate, or by the court as far as representation by an advocate is not mandatory and a party did not hire an advocate. A system of publicly organized access to justice, for those who cannot afford an advocate, is also a precondition for a good accessibility of court proceedings.
The court of cassation has to lead the development of the law and the uniform application of the law. However, its actual capacity to do so also depends on the freedom of first instance court judges in dealing with new situations, together with their knowledge and skills to follow the lead of the appeal courts and of the court of cassation in the application of established case-law.
Within the court system, effective justice depends on a good balance in the cooperation between the appeal courts and the first instance courts, and between the court of cassation and the appeal courts. This can only work if the first instance courts are adequately informed of decisions of the appeal courts and of the court of cassation, and especially of the reasons for these decisions. But it also works the other way around: the appeal courts and the court of cassation need to be adequately informed of new situations and the jurisprudence of the first instance courts. Being adequately informed is also a precondition for the well functioning of the advocacy. It is their task to push the development of jurisprudence by delivering pleas to the courts based on the latest developments in jurisprudence.
The development of the law and the unity of application of the law by judicial and other authorities may especially be enhanced through comments on jurisprudence and publications about its current and desirable developments by members of the juridical community (advocates, academic lawyers, civil servant-legislators).
Based on our knowledge and experience but especially based on the information provided to us by key players in the Armenian justice system as presented above, we present here our recommendations to the Armenian ministry of justice.
1. Priority should be given to support the judiciary and the GPO to improve their functioning. This cannot be done by changing legislation but demands organisational skills and leadership. Developing these skills within the judiciary should be given priority, with the ultimate aim of continuous organisation development. Important elements of this are juridical training, but also organised collegiate and pastoral support for judges.
2. Judges at all levels in the judicial organisation should participate in frequent training sessions in order to develop:
· a (personal) vision on the functioning of the courts;
· a critical attitude towards assertions of parties and state agencies in all kinds of cases, and skills to adequately evaluate the evidence in a case;
· skills to give reasons for a court decision by way of normative, syllogistic reasoning.
This should be given the highest priority and the least delay.
3. The court buildings in the regions should be improved (e.g. heating, restricted access area for judges, consulting rooms for advocates, recording equipment).
4. The outreach of the courts to the general public to provide it with information on how to file a case etc. should be a coordinated effort at the national level. This could be coordinated by the Council of Courts Chairmen, which should be adequately supported to achieve this. The policies developed by the administrative court may be a basis for further action by civil and criminal jurisdictions. Furthermore, the courts should use customer satisfactions surveys to develop better services to the public and better management information.
5. The court of cassation should develop its jurisprudence as the leader of the development of jurisprudence in Armenia. It therefore needs to improve the communication of its judgments in all its facets.
6. Communication between judges on the content and reasoning of a judgement should be vastly improved. The development and distribution of Journals of jurisprudence, with comments by advocates and academics is an aid to that process. Law faculties should be stimulated to develop this.
7. Measures should be taken to disconnect judges of first instance court from local communities, local police and local public prosecutors. Rota’s for judges can be designed, meaning that judges in a certain district rotate on a relatively high frequency basis to different court locations.
8. Any future changes in the administrative law system should also prevent a close connection between local society and the judges.
9. Transparency of court proceedings is a point deserving special attention and should be improved. Inspection of courts functioning under the supervision of the Council of Courts Chairmen may be developed as a primary tool of quality management. The development of trial-journalism can be a help to achieve that aim. This, however is not a task for the government.
10. The protection of advocates against judicial prejudice should be enhanced. Contempt of court by an advocate should be explicitly defined as misconduct (violating the ethics code of advocacy) and the burden of proof lies with the court. Abuse of the contempt of court rule by the court leads to denial of a fair trial to the parties.
11. The General Prosecutor’s Office should develop a monitoring system which shows how successful they are in preventing prosecutor and police malpractices in the courts that lead to denial of fair trial to suspects. The working methods and the results and should be published in an annual report.
12. The Justice Council should develop a monitoring system for the performance of the judiciary. The working methods and the results and should be published in an annual report.
13. Article 12, paragraph 6 of the Judicial Code must be replaced by provisions stating that disciplinary proceedings are to be held before the Justice Council on instigation of the Council of Chiefs of Courts. From the outcome of these proceedings, the judge thus prosecuted must be able to lodge an appeal with the highest court against the decision. As the Chief of the court of cassation is chair of the Council of Chief Judges, and the chairs of the civil and criminal chambers of the court of cassation in this context are also members, the Constitutional Court should be considered the highest court.
American Bar Association Rule of Law Initiative, Judicial Reform Index, Armenia, volume III, January 2008.
Philip M. Langbroek and Marco Fabri (eds. and research directors), The Right Judge for each Case, a comparative study of case assignment and impartiality in 6 European countries, Metro, Intersentia, Antwerp 2007.
Bryon Moraski, Breeding domestic watchdogs: does judicial design matter?, Paper prepared for the American Political Science Association Annual Meeting August 30-September 2, 2007 in Chicago, Illinois.
European Commission for Efficiency of Justice (CEPEJ)- European Judicial Systems, edition 2008, efficiency and quality of justice.
European Commission for Efficiency of Justice (CEPEJ) - Checklist for promoting the quality of justice and the courts, July 2008.
European Commission for Efficiency of Justice (CEPEJ - Compendium of “best practices” on time management of judicial proceedings, December 2006
TACIS, Support for Access to Justice in Armenia, Programme for Year 2006
World Bank, Project Appraisal Document on a Proposed Credit for a Second Judicial Reform Project, Republic of Armenia, February 2007.
RA Presidential Ordinance, 2009 April 21, NK – 59 – N, on Strategic measures of judiciary reforms 2009 – 2011.
1 NK-59-N ordinance
2 Report by The Commissioner for Human Rights, Thomas Hammarberg, on his visit to Armenia, 7-11 October 2007, April 30, 2008, p. 8, paragraph 26.
3 http://www.azatutyun.am/content/article/1590615.html, the case of Pargev Ohanian
5 American Bar Association Rule of Law Initiative, Judicial Reform Index, Armenia, volume III, January 2008.
6 RA Presidential Ordinance, 2009 April 21, NK – 59 – N, Page 9-10
7 See paragraph 7 of this report.