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Problems existing in the Sphere of Criminal Procedure Law: Samvel Dilbandyan

Samvel Dilbandyan, Head of the Criminal Procedure and Criminology Chair of the law department of Yerevan State University believes that criminal procedure is one of the most important branches of the law. We have talked to him about a number of problems that exist in the sphere of criminal procedure the code and other issues. Details in the regular interview of “Law Scholars” project.

Mr. Dilbandyan, how would you assess the criminal procedure law as a branch of law? What developments did it have in the last decade? What are the trends for development?

We may say that the criminal procedure law is one of the most important spheres in the system of law. Why do I attach importance to it? Because the criminal procedure law first of all is related to the restriction of the basic human rights, constitutional rights and the right for of freedom. No such restrictions are implemented in any other branch of the law. It is not casual that when considering chapter 2 of the Constitution which provides fundamental human and civil rights and freedoms, it is obvious that the major part of these rights directly refer to the sphere of the criminal procedure law. We may say that the criminal procedure law regulates the relations where two interests: the public interests and the private interest clash. The greatest role of the criminal procedure law is to provide the legal regulations, which can provide the balanced protection of these two important interests.

The New Criminal Procedure Code of the RA is aimed at solving the Problems facing the Armenian Jurisprudence, which are these problems, and to what extent are the current scientific progress and achievements of the criminal procedure law included in it?

The criminal procedure law has the history of its development: after the soviet criminal procedure law Armenia adopted the current Criminal Procedure Code of the RA in 1998. It was once a fairly democratic legislation; there were major principles and ideas. Many ideas were taken from international treaties, because the soviet criminal procedure law was primarily aimed at the protection of the public interest, whereas the protection of the interests of the individual was moved to the second plan. The current Code changed this approach, and since 1998 a lot of amendments were made parallel with the development of the legal thinking and relations. In addition, rather serious events occurred during this period. In particular, when we became an EC member state, adopted new values and signed the European Convention. Naturally, we have to harmonize out legislation with the requirement of the Convention. Thus, the international treaties became an integral part of our legal system. Later, in 2005 the constitutional reforms took place. As a result, the Code underwent many changes; it seems the system of its influence was broken, because in 1998, when it was adopted, there was a definite system, all institutions were in mutually interrelated relationship. But, after years, major changes took place in the provisions of separate articles, as well as in individual institutions. There are even articles that were changed 2-3 times: especially when the range of the subject applying to the Constitution Court was expanded. Since 2007 the Constitutional Court has ruled a lot of decision on compliance of the Criminal Procedure Law and the Constitution, and many norms were recognized unconstitutional. This fact is also a signal that the current legislation does not actually correspond to the reality that exists. The new Draft Criminal Procedure Code is, of course, is far ahead of the current Code. The main emphasis here is placed on fair trial, the availability of judicial trial, and the main objective is the guarantee of the protection of individual’s rights, as well as effective regulation of the operating institutions.
Which changes will you distinguish in the Draft Criminal Procedure Code?
Major changes in the new Code are stipulated in the connection with the pre-trial proceedings. In current legislation resolution is the same as in the Soviet era criminal procedure legislation. The drafty actually came out of that legal regulation and suggests new solutions. In particular the stage of the criminal case was lifted, the preliminary inquiry and investigation were changed, guarantees for the protection of individual rights increased. In addition, element of competition in pre-trial proceeding was increased, possibilities of the defense party were expanded, in particular to involve experts, to obtain evidence and to participate in the investigation activities related to the client. It can be said that the new Code provides for significant changes in all the institutions of criminal procedure: for example preliminary hearing that the current legislation specifies as preparatory stage to the trial, the draft renamed the phase as the preliminary hearing stage. This is an intermediate stage where the court finds whether there were obstacles to actually have the case in court, and to pass the person to the court. Under the current legislation the provision in this stage contains unconstitutional provisions: the parties’ participation and competition are missing, the court without taking into account the opinion of the parties solely takes decisions. From the aspect of solving these problems there is substantial progress in the new Draft.

How the issue of financing the scientific work in the sphere is solves? Do you have recommendations aimed at implementation of the reforms in the sphere?

After the adoption of the new Criminal Procedure Code we shall have serious problems in the interpretation of the legal document. This process is very important, I would say, the interpretations and comments on the Code are vitally important and urgent in the professional circles. In addition, it is also of key importance for our students.

Do the Armenian Law Scholars have opportunity to publish their scientific articles in foreign and international leading law journals? If “no”, how do you see the solution of this important problem? After all the Armenian Jurisprudence cannot have a separate development.

The works of our scholars are published in prestigious international journals regularly. We have criminologists whose works were published in Moscow. Basically there is the problem of English language. It is easier for the professionals who know language to publish their articles abroad. We must do everything to strengthen the linguistic knowledge of our experts.

Interview: Gevorg Tosunyan

Photos: Aleksander Sargsyan

Author of the idea: Karen Zadoyan

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