The Right to Defense in Armenia and Azerbaijan

Ara Ghazaryan, criminal lawyer (Armenia)

Interviews with two lawyers from Armenia were held at the beginning of a scandal that arose on May 19, 2019 due to the first instance court ruling to change the preventive measure applied against the ex-president of the RA R. Kocharyan. R. Kocharyan is accused of overthrowing the constitutional system in Armenia in March 2008. The preventive measure against Kocharyan, who was arrested in July 2018, was changed for the second time. On May 20, 2019, Armenian Prime Minister N. Pashinyan made a statement on the need for radical reforms in the country's judicial system. Now there is a broad debate in the media and on other platforms about the fourth power in the country. The topic of introducing vetting is particularly discussed, and hearings on mechanisms for implementing transitional justice were simultaneously organized in the National Assembly.

A Large Part of the Society Identifies the Lawyer with the Client

- Is the right of citizens of Armenia to defense in court guaranteed? Who represents their interests under the criminal and civil law? Are legal services available to citizens, if we judge by the number of advocates and their fees?

I can say that access to court, the right to turn to court is guaranteed in Armenia. It is a different question whether a citizen will win the trial or not, and whether the conditions in which the trial takes place in are adequate or not. A citizen can go to court with a lawyer or independently. The only exception is those cases when the court finds that the interests of justice prevail over private interests and necessarily appoints a lawyer (Editor - In accordance with their licenses, Armenian lawyers practice both criminal and civil cases. And among public defenders, there are specialists who engage only with civil and administrative cases, and professionals who practice only in criminal cases). It goes without saying that access to court is guaranteed to foreigners in Armenia.

- How effective is the work of advocates hired by citizens and public defenders provided to clients in modern Armenia? In what proceedings (criminal, administrative) and how often do citizens succeed in court with advocates’ help?

For obvious reasons one way or another, only one of the parties achieves success in civil cases, or the success rate is 50%. As for efficiency as a whole, the pool of advocates in Armenia is growing rather steadily. At the same time, I would not say that the professional qualities of our lawyers are generally at the required level. We still have a long way to go in this direction and we have a considerable amount of work to be done. Lawyers regularly participate in advanced training. However, significantly less than other professional groups, such as judges, prosecutors and investigators.

In any case, the Chamber of Advocates, the School of Advocates and the Office of the Public Defender ensure that lawyers' knowledge is updated to meet modern requirements. I cannot evaluate the effectiveness of the three institutions, mentioned above: I do not have any data on monitoring their activities. Nevertheless, my observations help me conclude that in any case trends are developmental. The number of law school applicants is growing annually.

It is noteworthy that today successful investigators, prosecutors and even judges intend to become advocates. Thus, out of the four categories listed above, the most demanded specialization today is that of the advocate. This can be accounted for by the revival of legal services market in recent years. Today a good lawyer can earn quite a decent amount in Armenia, even by European and American standards. More and more lawyers pay taxes, which gives them additional confidence.
In their turn, citizens have begun to turn to lawyers much more often now. And if 15 years ago citizens tried to resolve conflicts through “necessary acquaintances and networks”, they prefer to act by law now. Any contract, as a rule, involves the participation and consultation of lawyers. We even had recent cases of journalists appealing against editors who violated their labor rights. Unfortunately, such actions in terms of labor relations in Armenia, in general, is not a common practice.

- What is the attitude of the society towards legal services? Are there any examples of successful lawyers in cases generating great public interest? And in general, what are the conditions they operate in when the cases are of great public interest?

Here we face quite a major problem. Unfortunately, most of the Armenian society automatically identifies the lawyer with his/her client. And if the defendant does not enjoy prestige and respect in the society and, for example, is a former politician or oligarch, the attitude to the defendant in the form of curses, swear words, various manifestations of hatred, including the most vulgar ones, e.g., spitting on a car, is inevitably projected onto a lawyer. All this hatred against advocates who work with fairly subtle and complex political affairs is massive in its scope. And it is quite natural that all such manifestations introduce certain rigidity into lawyers’ actions, and this inevitably affects the overall quality of justice.

Sometimes lawyers are openly threatened. The Chamber of Advocates and the Police work well here. Thanks to the relevant agreement between them, such cases are processed very promptly. In any case, our society must understand that a lawyer cannot refuse to protect the interests of, for example, an oligarch, just as a doctor cannot refuse medical assistance even to a war criminal. There was a case when the opponents of General Manvel Grigoryan (Editor- former chairman of “Yerkrapah” Volunteer Union, after being deprived of parliamentary immunity in June 2018, was arrested on charges of illegal possession of weapons and misappropriation of food for the army) blocked the street and attacked his advocate who was in the car. In principle, a criminal case should have followed, at least according to Clause 1 of Article 258 of the RA Criminal Code - “hooliganism.” But there was no follow up.

The pressure, however, is not put on lawyers only. If we speak about the judges leading, for example, the case of the Sasna Tsrer group, words of hatred, insults and even curses were voiced intensively and massively (Editor - In July 2016, the Sasna Tsrer group seized a regiment of the patrol police in Yerevan which they sieged for two weeks. Subsequently, the group surrendered to the authorities, voluntarily laying down their arms).

And naturally, all this also has brought some restraints to the work of judges. Judges do not live and work in a vacuum, they are part of the community, too, and they see what is happening in the street. This restraint accounts for a series of self-withdrawals by the judges in the case of ex-President Robert Kocharyan (Editor – Ex-President R. Kocharyan was arrested in July 2018 on charges of overthrowing the constitutional order in Armenia in March 2008. 10 casualties were caused when dispersing a protest rally with thousands of supporters for the presidential candidate Levon Ter-Petrosyan). Judges simply do not want to be pointed as persons a public stigma is put on, they do not want to hear: “Look, this is the judge who investigated Robert Kocharyan’s case.” Judges do not want to be threatened on social networks and even in the street.

Thus, here we have quite a deeply rooted problem that cannot be resolved by any law. It can be resolved only by raising the general level of education and legal awareness in Armenia. It takes time and, by the way, considerable time for people to understand that it is wrong and impossible to identify the lawyer with his/her client. As for the general attitude of the society towards lawyers, it is identical to the situation in all countries. People treat us with suspicion, toxic jokes, stories, etc. So in this sense, we are no exception.

-How often do lawyers have to apply to the European Court of Human Rights (ECHR)? What is the attitude of the authorities to the decisions of the ECHR on Armenia, is there a differentiated attitude to these decisions? And what follows if these decisions are not complied with? Are there any examples?

According to the latest statistics, Armenia and Azerbaijan have already appeared in the list of countries who turn to the ECHR most frequently. There used to be four such countries: Turkey, Romania, Italy, and Russia. Subsequently, Ukraine was added to the list. In the past two years, all three countries of the South Caucasus, namely Armenia, Azerbaijan and Georgia, have become leaders in the number of appeals to the ECHR.

This means that there are or were serious problems with justice in our countries (the past tense is due to the lengthy procedures before the ECHR decisions). For example, I am currently waiting for the decision of the ECHR on a case I filed in 2011. The growing number of appeals from Armenia to the ECHR indicates the presence of serious systemic problems with human rights in our country. At the same time, in my opinion, the number of lawsuits in the ECHR suggests that our citizens significantly overestimate the role and possibilities of this institution. As a rule, the issue of appealing to the ECHR simply is not on the agenda of a British or French lawyer. All issues are resolved in national courts.

As we see, the situation is completely different in Armenia. This indicates a high level of trust among our citizens in this institution and a lack of trust in our judicial system. At the same time, there is quite a large number of lawyers and human rights defenders in Armenia who are able to execute lawsuits very competently and at an appropriately high level to be submitted to the ECHR. And finally, the main reason for the large number of appeals to the ECHR from Armenia is the high number of human rights violations by state bodies and government institutions. At the same time, I will reiterate myself, we cannot estimate the situation with violations of citizens’ rights in Armenia, since we currently receive decisions on cases filed for ECHR proceedings 7 – 8 years ago.

In its turn, the Armenian authorities take the decisions of the ECHR quite seriously. According to my information, the government of Armenia has made considerable achievements in the implementation of these decisions. As a rule, the compensations to the plaintiffs are paid on time. Though at a slow pace, practical measure are implemented to raise public awareness, and the amendments requested by the ECHR are being made to the legislation. Thus, in general, the perception of the ECHR is quite positive, both among the society and the Armenian authorities.

Certainly, there is a group of citizens in the Armenian society who believe that Armenia does not need the ECHR at all, that this institution distorts our jurisprudence and imposes values on us that are incompatible with our national mentality. However, the number of such people is extremely small. Such citizens, as a rule, look towards the North (Editor – Russia), forgetting that the North also works with the ECHR, while, for the last 10 years, it has been accompanying such work with threats to leave the Council of Europe. As for the non-implementation of ECHR decisions, there has been such a practice, but this happened in Azerbaijan, if I remember correctly, and it was Mammedov’s case. The authorities of Azerbaijan have long been delaying the implementation of the ECHR’s decision, which forced the Committee of Ministers of the Council of Europe to use the mechanism for initiating legal proceedings on behalf of ECHR against Azerbaijan for the first time. With regard to Armenia, such proceedings have not been instituted yet.