The Right to Defense: Legal Services in Armenia

Narine Rshtuni, lawyer

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.

The Right to Defense: Legal Services in Armenia

- According to RA legislation, how can a citizen of the Republic of Armenia defend his/her rights in court? Who defends (represents the interests) citizens under the criminal and civil codes?

As in almost all countries in the world, the Constitution of the Republic of Armenia, as well as the sixth article of the European Convention on Human Rights, guarantee the citizens’ right to access to court. Any citizen of Armenia, who believes that his/her rights have been violated, can defend them in civil or criminal proceedings. Of course, there is a difference in the procedural plan. In criminal cases, defense is provided by attorneys only. In civil cases, the representative of the plaintiff or defendant may also be their close relative, and in administrative cases, these can be other persons, too, in addition to the involved advocates. In Armenia, all advocates are members of one Chamber of Advocates, which issues a license for the right to practice law. The concept of a professional lawyer-advocate is not there among us. Either an advocate is a member of the House, or he or she is just a lawyer.

According to law, every citizen has the right to defense in criminal proceedings. And if a citizen has no financial means to hire a lawyer, the state guarantees his/her right to defense. Armenia has a Public Defenders’ Office, the advocates of which provide free legal advice and protect the rights of citizens during the investigation and in court. (Editor - All members of the public defender's office are members of the Chamber of Advocates. But in order to become a member of the Public Defender's Office, one needs to receive additional license, having taken additional qualification courses. The members of the Public Defenders’ Office can enter into agreements with clients and receive fees and act as hired lawyers, if the Public Defenders’ Office employs them part-time).

Every suspect or accused, if expressing a desire to have an advocate, must be provided with a public defender, unless he/she is able to conclude an agreement with a private attorney. Citizens have the opportunity to make use of the services of Public Defenders’ Office in civil cases. However, the law provides for such an opportunity for only a certain category of citizens. To enjoy this service, the citizen will need to prove against some criteria that he/she is poor.

At the same time, all the mentioned provisions on free legal assistance also apply to foreign citizens. The Minsk Convention regulates the matter for the citizens of CIS countries. And if, for example, a citizen of Azerbaijan is suddenly detained on the territory of Armenia, this person will be provided with the services of a lawyer for gratis. I think that in such cases it would rather be within the domain of the criminal code. Accordingly, the Criminal Procedure Code provides for the mandatory participation of an advocate in the process. If the accused does not speak Armenian, foreign citizens are also required to provide an interpreter who translates the entire process to them. I now have a defendant – a citizen of the Russian Federation, a Muslim Armenian, with all implications thereof, i.e. prayers at set times during the day and so on. And at the hours of prayer even the investigator does not come to him. It is ok, we have got used to it, we somehow cope with this situation.

The role of the advocate is very important in the fair trial process. The advocate must be the “shield” that protects private interest from the arbitrariness and mistakes of the justice system. To achieve the goal of implementing JUSTICE and for delivering a fair ruling, it is extremely important to have an independent judicial system that is free from corruption. Unfortunately, I cannot say that our judicial system is perfect. Armenian lawyers have long expressed their concern about the qualifications of some judges and the state of the judicial system as a whole. Back in 2013, the advocates went on a strike, protesting against the actions, or rather inaction and arbitrariness of the Court of Cassation of Armenia. In the same year, a relatively tough report was published by the Ombudsman on the state of the judicial system. So, the need for change and resuscitation of the judicial system has risen long before. And it should be noted that the judicial system should first of all be independent, also from the executive branch, and it is not acceptable to allow for any interference in the activities of judges and their decision-making process.

Now they speak a lot about the need for the so-called “transitional justice.” First of all, we need to understand the term. In theory, “transitional justice” (transitional justice) is justice that is adjusted to a society that is in the state of transition from a time when infringements upon human rights were a systemic and permanent phenomenon by the time an independent judiciary and the rule of law are established.
International experience shows that “transitional justice” is used in those cases when the ordinary justice system is not able to fully protect all the victims.

Despite the serious problems in the judicial system, I think Armenia can find optimum methods for improving the system. In any case, it should be borne in mind that if the use of “transitional justice” is carried out by people who do not possess appropriate qualifications and necessary human qualities, the situation may lead to a new round of arbitrariness and repression.

- How large is the population of Armenia and how many current members of the Chamber of Advocates are currently there?

According to the latest data of the National Statistical Service of Armenia, as of January 1, 2019, the recorded population in the country amounts to 2.965 million people, more than a million of whom live in Yerevan. At the same time, the number of experts in Armenia is increasing from year to year. An exam to verify qualification for practicing advocacy have not been held in Armenia for years now, however, after the School of Advocates launched its operations, licensing examinations were regularly held, the situation changed (Editor - obtaining a license gives the right to membership to the Chamber of Advocates).

As of April 1, 2019, there are 2,017 active advocates in Armenia, that is – 2,017 people 43% of which are women.
In reality, there are even more lawyers, however, those who are not directly engaged in advocacy work have their license suspended. For example, these are our colleagues who occupy government positions. Thus, the current ratio in Armenia is 1.470 potential defendants per advocate. Some people think that we have too many lawyers, but, as you can see, this is far from being the case. Another thing is that, unfortunately, most of our citizens do not have financial capacity to pay for a lawyer’s services.

- How much do legal services cost?

Quality legal services are often quite expensive. At the same time, with 2.017 lawyers, it is impossible to guarantee the desired quality of everyone’s work, without exception, as you can understand. I am very pleased when lawyers opposing me in court demonstrate a high level of professional competence. However, unfortunately, sometimes you bump into illiteracy. I highly appreciate the aspirations of my young colleagues for career growth. This is due to the understanding of the demand for quality and competence to be competitive in the legal community, where one has 2.016 competitors. I think of this phenomenon very positively, since competition contributes to the quality of our work and the services we provide.

At the same time, I find it difficult to answer your question about the cost of our services unequivocally. The fact is that the range of the lawyer’s services cost can be quite big. Someone can write a claim for 5 thousand drams (Editor. - a little more than 10 US dollars), of course, with commensurate quality. Whereas someone else may charge sums for their own services, which can be considered exorbitant in Armenia. In various cases we can talk about millions of drams (Editor- $ 1 - 480 drams). It all depends on the amount of work, the duration of the process, the value of suit. When you win a property worth millions of dollars in a civil case, it is clear that the sum charged for the services will be commensurate. At the same time, it should be borne in mind that all attorney expenses, ranging from office supplies to paying rent for the office, are borne by the advocates themselves. And, of course, taxes on turnover and social benefits shall be considered, too. I can also say that the misperception present in our society that lawyers do not pay taxes, does not reflect the truth, if I put it mildly.

- How does the quality work by an attorney hired by a citizen differ from the services paid by a lawyer provided by the state?

De jure, the services of an advocate hired by the citizen himself should not differ from those of an attorney provided by the state. Lawyers who have their own private practice and lawyers from the Public Defender's Office have the same rights and obligations. And I cannot say that an advocate provided by the state works worse than a hired advocate. I had to work in criminal cases with public defenders whose work I enjoyed. At the same time, I also see the workload of advocates working in the Public Defender’s Office. They have an incredible number of cases which they sometimes simply physically fail to keep up with.

For example, we often hear complaints from defendants about advocates provided by the state that the latter do not come to the pre-trail detention center. At the same time, I know perfectly well that this lawyer simply does not have time for this, because they spend all of their time in court sessions. So, the point here is not in the absence of desire. Lawyers do not go to the pre-trial detention centers not because they do not want to, but because they cannot. A way to the pre-trial detention center, waiting for a meeting with a client, the meeting itself, the time spent on return will take at least 2 hours of the attorney’s time. Unfortunately, this is very often an unaffordable luxury for a lawyer who does public work.

It is clear that the number of advocates working in the Public Defender’s Office is rather limited. For example, in the whole Aragatsotn region there are only three advocates: two for criminal cases and one for others. There are only five state lawyers in the largest territory with the largest population in the republic – Syunik region. In total, in nine regions of Armenia the rights of citizens are protected by 43 public defenders. Of course, the situation is different in Yerevan. 28 state lawyers work in Yerevan, of which 21 deal with criminal cases and 7 deal with civil cases.

In any case, citizens dissatisfied with the work of any lawyer have the right to complain about it. To this end, the Chamber of Advocates has an appropriate Disciplinary Commission. Any complaints by citizens against advocates are dealt with and examined by the Commission carefully enough within the framework of the law and the corresponding code of attorney ethics.

You know, it is very difficult for me to speak for everyone. I can speak for myself. Lawyers, in some sense, are in a very similar situation with doctors: you live through every case, making it part of yourself. The problem of each client becomes your own problem, and you constantly think about it. It seems to me that most of our advocates work quite well and, most importantly, they work honestly. In any case, I based my assessments on my communicating with my colleagues, whom I have to face on a daily basis. And the adequate level of such colleagues’ training always makes me happy. In civil cases, this allows for settling suits in the interests of both clients. The main thing for a lawyer is to think and care about the interests of his/her client, and not just about his/her own pocket. I think everyone will be happy if this is the case.