The higher court instances interfere in the work of the lower court instances. Nils Muižnieks Council of Europe Commissioner for Human Rights is concerned with this problem. He has published a report on the situation of Human Righyts in Armenia, where he refers to the RA court instances and the protection of human rights.
Commissioner about the pressure by the Cassation Court and solution of the problem of overload of the courts.
The report states that during different meetings the Commissioner was informed that the procedures of selection, appointments, promotion and termination do not promote the independence of judges, which in particular is due to the dominant role of the RA President.
The commissioner added that the Judicial Code prohibits unlawful interference with the activities of judges; However Mr. Muižnieks was informed that the provided mechanism does not work and ho one has ever been subjected to criminal liability.
The report also refers to the concerns of the Commissioner about the pressure upon the judges of lower court instances by the Cassation Court of the RA
The Commissioner received a lot of information about initiation of disciplinary proceedings upon the judges, as leverages for influence on the decisions of the judges or about unjustified application of the punishment mechanisms against them.
The report provides the example of the Judge of the First Instance Court Samvel Mnatsakanyan, who granted the motion for release on bail. But on solicitation of the Chairman of the cassation Court the Council of Justice initiated a disciplinary proceeding against him and in July 2011, the RA President dismissed him from the position of judge.
Different persons whom the Commissioner met told him about the need to increase the number of judges as well as other employees of the judicial system. They had mentioned that the courts were working under overload. Interestingly the Commissioner’s report indicates the concerns, but Nils Muižnieks does not propose to go in this direction, but he reminds that a very important step directed to increase the efficiency index of the judiciary system was application of alternative dispute resolution mechanisms. He emphasized that different member states of the European Union use at least three mechanisms, whereas Armenia uses only on – the arbitration. Thus he suggested applying these mechanisms as well.
The Commissioner also hoped that the problem would be solved in the framework of Constitutional Reforms.
“The Prosecutor’s Office Continues to dominate”
According to the Commissioner equality of the parties in the investigation process and during the trial, are not supported duly. He mentioned in the report that the issue of accessibility of the advocate is still problematic in the initial period of being kept in the police. The report provides that it is still a repeated practice to invite e a person to the police as a witness and then they are treated as suspects without ensuring the guarantees of their rights.
In addition, the Commissioner’s report mentions that during the trial the courts do not take into account the defendants’ testimonies.
The Commissioner received information from different people that the prosecutor’s office continues to dominate in the Criminal Procedure System of the RA. The report also states that the materials of the criminal case are not equally accessible for the defense and prosecution parties.
In this regard, the Commissioner has brought the counter arguments of the President of the Constitutional Court, the Prosecutor General, The Chairman of the Cassation Court and the statistics of the Judicial Department according to which the number of acquittals in the period of 2009 – 2014 gardually grew and as of October 2014 amounted to 3.1 percents.
“The First Instance Courts do not follow the judicial precedents of the Cassation Court”
The initial detention affects the right to a fair trial, the right to defense and the principle of the presumption of innocence in the investigation and trial stages. This is the Commissioner’s conclusion.
The Commissioner pointed out that the RA Criminal Procedure Code provides for other preventive measures. He concentrates on the institute of bail. The report says, “Although the Criminal Procedure Code provides that bail may only be applied to the persons that are accused for not heavy or medium crimes, yet the Cassation Court in its precedential decisison provided that bail may be applied to the severe and especially severe crimes as well. However, it seems that the lower-level courts do not follow this precedential decision of the Cassation Court.”
In his report the Commissioner expressed concerns about the information on the alleged violations of the principle of presumption of innocence by the judges and senior officials.
Selective Justice
The Commissioner is seriously concerned about the continuously received information on the torture and ill treatment by the police and law enforcement authorities, which are aimed to force to confess.
The Commissioner also referred to the case of Shant Harutyunyan and others, and observed the accusation against the juvenile Shahen Harutyunyan.
The Commissioner urges the RA Authorities to strengthen the guarantees excluding torture and cruel treatment by the law and in practice.
Gevorg Tosunyan
