Session I

Judicial and Legal Reform in the Republic of : Progress, Challenges, and Lessons Learned

Translated from Russian

Hon. Hovhannes Manukyan

A WORLD BANK CONFERENCE Co-Hosted by the

“Empowerment, Security And Opportunity Through And ”

July 8-12 2001 Tavrichesky Place Saint Petersburg, Russia

The Honorable Hovhannes G. Manukyan, is presently the Chairman of the Commercial of of the Republic of Armenia. He also serves as a member of the Board of the World Bank Project on Legislative and Court Reform in the Republic of Armenia. He previously served as deputy of Justice and as an advisor to the Committee on - Legal Issues of the Armenian National Assembly.

2 I. Introduction

The Context of Transition

Armenia became an independent state in 1991; however, decades of centralized public administration did not create a favorable soil for the development of an independent . In fact, the framework of social, political and economic institutions had to be created ex nihilo. This is because the formal administration of all branches of government, including the judicial branch, no longer existed.

The role of the Procuracy in criminal and civil proceedings, although an anachronism, was still present and formidable. Criminal proceedings were still accusatory, and the procurator remained the central figure in the proceedings. In fact, the role of the procurator's office was also very strong in civil proceedings, within the procurator' s "general supervision" role.

The Ministry of Justice was in charge of court administration, and made it impossible for the court to operate independently of the executive branch. In addition, the extremely weak execution of court orders by bailiffs meant few cases actually got to the court for . The in general were held in low esteem by the public, and , in particular, were considered to lack the authority implied by virtue of their office.

The situation of the legal system in Armenia at the point of transition characterized that of all republics of the former USSR. The majority of social and economic relationships to the state were regulated by administrative . Few and codes were in effect, as normative acts concerning and individual freedoms were slowly being adopted by ministries and executive agencies. During this time, the public generally had no access to or information about most of these new acts, and those regulating the and other investigative bodies were not made public and classified secret. Serious institutional transformations were needed to drastically change this environment.

The movement toward legal protection of human rights and freedoms, as well as the regularization of the whole range of relations between the citizens and the state, has become the most important overall trend in the reform of the legal system. The turning point in Armenia was the adoption of a new

The New Constitution

The Constitution of the Republic of Armenia was adopted by a national referendum on July 5, 1995. Along with other basic principles, the Constitution provides for an independent judicial branch. Chapter 6 affirms the principles of the formation of the judiciary, and Article 91 states that "justice is exercised in Armenia only by courts in conformity with the Constitution and the laws," Article 92 defines the organization of the judiciary as consisting of the courts of general , i.e., the courts of first instance, the courts of , and the Court of Cassation.

3 The structure of the judicial system, expressed in the Constitution, provides for the independence of judiciary of all instances without exception--not only from the executive and legislative branches but also from any other court of instance.

As required by the new Constitution, the Law "On the Judiciary" adopted July 18, 1998, was a major element of the judicial and legal reforms, as it defined the new judicial branch of the Republic of Armenia.

General Characteristics of the Legal System

The has been undergoing a fundamental transformation since the beginning of the 1990s. The general lines of the reforms are similar to those in the post- socialist world: ideological and political pluralism, socially-oriented market economy, broadening concepts of human rights and individual freedoms and strengthening their guarantees. While the legal system of Armenia is being transformed to fit its unique circumstances, its basic principles, structure, and juridical technology continues to be similar to that of other CIS member states. For this reason, Armenia belongs to the "Eurasian" group of the Roman and Anglo-Saxon legal family, which constituted the basis of the relatively homogeneous laws of the CIS.

Legislative and other normative acts are the main . The hierarchical structures flows from the Constitution, Parliamentary laws, Presidential decrees, resolutions of the Government and the Prime Minister, regulatory acts of ministries and agencies, and autonomous state entities. The Parliament may authorize the Government to issue resolutions that have the force of a law, but not in conflict with Parliamentary laws.

Article 6 (part 4) of the Constitution indicates that international treaties are an integral part of the legal system. Treaty provisions are applied if they are different from those provided in the Armenian laws. On the other hand, the decisions of the Constitutional Court of Armenia have unique as a basic for law, and can annul any provided by other laws or regulatory acts.

• and Related Branches of Law

The Armenian civil law, as well as the Russian one, was changed in 1990s to accommodate the principles of a market economy as well as Roman and Germanic civil traditions.

The foundations of new civil and commercial relations are affirmed in the Constitution (Article 7), i.e., the State "guarantees the right to and inheritance, equality of all forms of property." (This and further articles do not specify the forms.) Article 24 indicates the rights and obligations of citizens: "Each citizen has a right to own property. No one can arbitrarily deprive a citizen of his/her own property".

The foundations of a new civil law were adopted on July 28, 1998 in the of the Republic of Armenia. It was based on the Model Civil Code, approved by the Inter- Parliamentary Assembly of States/Parties of the CIS.

4 As in other states of the CIS, the Armenian Civil Code regulates the relations between persons carrying out or participating in entrepreneurial activity, and thus precludes the adoption of a separate trade code. Family and labor relations as well as relations governing natural resources are subject to subsidiary by the Civil Code and the civil .

The Civil Code (Articles 167-69) establishes three forms of property, i.e., that of : citizens and legal persons, the State, and community property (municipal units). The rights of collateral, property use and service are material rights, along with the basic right to property. This differs from the concept adopted in Russia and the majority of CIS states, where collateral is viewed as a means to secure other obligations.

In the 1990’s Armenia adopted numerous laws creating the legal basis for entrepreneurial activity. Among these are the law on: Enterprises and Entrepreneurial Activity (March 14, 1992), Banks and Banking Activity (April 27, 1993 and June 30 1996), Commodity Exchanges (August 31, 1993), Circulation of Securities (September 8, 1993), Individual Entrepreneurs (December 27, 1993), Individual (Family) Enterprises (June 13, 1994), Foreign Investments (July 31, 1994), of Enterprises and Individual Entrepreneurs (June 15, 1995), Joint Stock Companies (May 7, 1996), Bankruptcy of Banks (June 29 1996), and Advertisements (May 25, 1996).

The 1991 Land Code (Article 4) envisaged three forms of property: citizens, collective property, and state property. According to the Constitution (Article 28), aliens or persons without citizenship cannot own land, except as otherwise prescribed by law. The 1992 Code on Mineral Rights and The 1992 Water Code, and the 1994 Forest Code regulate matters concerning the use and protection of natural resources. The Foundations on Laws on Protection of Nature is major act in the field of ecological law.

The main source of labor law was the Soviet Labor Code (with a number of amendments and appendices). In fall 1999, a new labor code was prepared based on modern standards in this field and is now effective.

• and Procedure

The 1960 Criminal Code continues to be the main source of criminal law in Armenia. Important amendments and appendices were added to it after independence. Many acts directed against the Soviet system, including those involving ideology and social and economic relations with the USSR, were decriminalized. Many new types of emerged in parallel with the movement toward a market-based economy.

The Armenian underwent reforms aimed at strengthening legal safeguards for human rights and freedoms. The Constitution (Basic Law) established new democratic norms and principles for criminal proceedings. In this respect, an individual can be detained by court decision only by using procedures defined by law. The new Criminal Procedure Code was adopted in 1998, and became effective January 1999. In addition to the first instance, it also provides for instances of appeals and cassation. In courts of first instance, all criminal cases are heard by one ; in the court of appeals they are heard by three judges. In the Court of Cassation cases are heard by the Chairman of the Court Chamber and the majority of its members.

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The criminal proceedings in Armenia have always had an accusatory character (burden of on the ), but the equality of of the is not always observed in practice. The permanent lack of financial and material resources causes enormous difficulties for applying the new norms and standards.

The Judicial System: Common Features

The Constitution identifies the judiciary as one of the three basic and independent branches of state power. It also specifies that legal justice in the Republic is administered only by courts. Many French concepts appear in the Armenian Constitution relating to the judicial system. The courts of first instance, the courts of appeals and the Court of Cassation (replaced the Supreme Court in 1998) are courts of general jurisdiction. It is forbidden to establish extraordinary courts.

The judicial system of Armenia consists of courts of first instance, three courts of appeals (economic, civil, and criminal, plus cases), and the Court of Cassation.

In the courts of first instance, one judge hears all cases without exception. The courts of appeals hear cases of substance for the second time in the presence of three judges. The Court of Cassation reviews cases with participation of all members of the chamber (the chamber on civil and economic cases and the chamber on criminal and military cases).

The Council of Justice, chaired by the President of the Republic, is the guarantor of the independence of the judiciary and is the highest body in the judicial community. The Council of Justice Law (November 14, 1995) defines the procedures for its activities. The Minister of Justice and the General Procurator are the Deputy Chairmen of the Council. The Council also consists of 14 members appointed by the President of the Republic for a five- year period. Two members are legal scholars, nine are judges and three are procurators. Three members are from the courts of first instance, the courts of appeals and the Court of Cassation, respectively. General meetings of judges nominate three judges for each place by secret ballot. The candidates from the procurators are nominated by the General Procurator.

The Council of Justice makes up and submits for approval by the President annual lists of judicial post eligibility and career promotion of judges and procurators, and the appointments are made accordingly. It also proposes the candidates for chairmen of courts of appeals, first instance and other courts, evaluates the candidates of other judges nominated by the Minister of Justice, evaluates the candidates of deputies of the General Procurator, procurators heading the structural units of the procurator's office nominated by the General Procurator, and performs other functions defined by the Constitution.

The Constitutional Court is the body of constitutional oversight in Armenia, beginning its operations in 1996. It consists of nine members: five appointed by the National Assembly, and four by the President of the Republic.

The judges and members of the Constitutional Court serve their full term limits. A judge occupies his/her post to age 65, and a member of the Constitutional Court to the age of 70. Their powers terminate only in cases with procedures defined by the Constitution and applicable laws.

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The offices of procurators are part of a centralized system headed by the General Procurator, who is appointed by the President on the Prime Minister's nomination. Article 102 of the Constitution indicates that the Procurator's Office brings criminal proceedings, executes supervision over the lawfulness of preliminary investigations and inquiries, supports the prosecution during the trial, institutes actions in court in defense of state interests, appeals against decisions, sentences and rulings of courts, and supervises application of punishment and other forms of correction.

Although Article 92 of the Constitution specifies that economic and military courts should operate in Armenia, the drafters of the draft reform law “The Judiciary" did not take into account this requirement. The only specialized court is the Appellate Court on Economic Cases, which is integrated into the courts of general jurisdiction.

II. Program of Judicial and Legal Reforms

Main Reform Trends

The judicial branch has only recently started to develop, and is far from being able to fulfill its role as guarantor of law and justice in society. The question of how effective an independent judiciary will be in Armenia in the future will depend on the way in which reforms are carried out.

The basic principle of a democratic state is division of powers. It guarantees, through the system of checks and balances, that all branches of government will be balanced and one branch will not dominate the other.

The judiciary plays a decisive role in preserving this balance by securing the effectiveness of these mechanisms through law. It is the courts themselves that eventually decide what is lawful and what is not, what is right and what is not. However, this will be possible only if the judicial branch is empowered, that is, if the judicial system meets the highest requirements and standards recognized by civilized societies, as stated in Article 14 of the Covenant of Civil and Political Rights.

The Constitution affirmed the whole range of universally acknowledged human rights and freedoms and guaranteed their protection--including their judicial protection. The independence of the courts, as well as their competence and impartiality during fair and public proceedings, have been ratified. Nevertheless, the Constitution itself defines only partially the mechanisms for securing the stated principles and guarantees. In other words, such mechanisms will need to be developed in detail by laws and other legal acts. In accordance with Article 38 of the Constitution each person has a right to defend his/her rights and freedoms by all means not forbidden by law. The same article proclaims the right of an individual to have judicial protection of his rights and freedoms, as affirmed in the Constitution and laws. Article 39 further specifies that to restore violated rights, each person has a right to a public hearing, in conditions of equality, before an independent and impartial court exercising all requirements of fairness. The reformed judiciary must also provide the prerequisites and guarantees to effectively exercise the rights stipulated in articles 40, 41 and

7 42 of the Constitution, for example, the right of defense, of appeal, and .

The judicial and legal system also must establish stable and reliable guarantees for complete and effective realization of the constitutional rights of citizens and the unconstrained development of democratic relations. In this regard, in developing an integrated program of judicial and legal reforms, constitutional requirements and restrictions defined in Article 116 (para. 7-14) must be taken into account. Article 116 required the reform process to:

i. Establish the timetable to complete the reforms; ii. Define the procedures of the activity of the judiciary during the period of the transformation process; iii. Take provisional decisions and define the rationale of these decisions; iv. Set up prerequisites and the basis for the creation of new institutions and ways to ensure their continuity. v. Determine the necessary steps needed to establish the new legal system and its priorities.

Stakeholder Role in development and adoption of the Program of Judicial and Legal Reforms

The process of development, adoption, and implementation of reform program was unique in Armenia from the start. As noted, the constitutional basis of these reforms was Article 9, which outlined the timetable for establishing the new judicial system. According to Article 116, the new judicial system was scheduled to be in effect in January 1999.

Initially, the development of the reform program and constitutional acts were managed by the parliamentary Commission on State and Legal Affairs. The chairman of the Commission was an influential politician and the chairman of the faction representing the majority in the parliament, but the Government did not have enough political will to assume responsibility for the implementation of such reforms. Under these circumstances, the political leadership decided to coordinate the activity of various State structures to achieve the reforms. The State Commission on Judicial and Legal Reforms was established by Presidential , February 27, 1997. The Prime Minister and the Chairman of the Constitutional Court were the Co-Chairmen. Members of the Commission were the Deputy Chairman of the National Assembly, the Chairman of the Commission on State and Legal Affairs, the Minister of Justice, the Chairman of the Supreme Court, and the General Procurator. Thus, the Commission comprised the representatives of all branches of government, which had an important stabilizing impact on the process and gave a new impetus to the reforms. Among the participants, the most important role was played by the Ministry of Justice, which that took responsibility for the organizational issues.

The Ministry of Justice played a unique role in the process of reforming the judicial and legal system. In all post-Soviet states the Ministries of Justice had the function of organizational administration of the judicial system, but were not the pioneers of reforming the judiciary; the executive power viewed the Ministries of Justice as levers to put pressure on courts. The situation in Armenia was different. The role of the main participant was, in

8 fact, assumed by the Minister of Justice himself, who coordinated activities of all parties until the new judicial body was established. This was also unusual in that the actions of the judicial community were often more conservative than the policies conducted by the Ministry of Justice. The President and the Government had confidence in the reform policies of the Minister of Justice. The process of adoption of the bill to create the Court of Cassation is an important example. Nearly all members of the former Supreme Court were against the creation of the two-chamber court, with a chairperson and five judges in each chamber. The resistance was explained by the refusal to accept the constitutional concept of creation of a three-tier judiciary, and the fear of losing the post of a judge (over 30 judges worked in the Supreme Court).

One of the most important participants in the process was the community of judges. The judges already had created their own professional association, the Union of Judges of Armenia--though the judiciary did not have a single body of judicial self-government during the period preceding the reforms. The main role of the Union was to express the will of the judicial body in the draft program of reforms and individual measures aimed at implementation of this program.

The participation of non-governmental organizations (NGOs) was very important in determining the main trends of the reforms. The role of the Department of Law of the Armenian State University was important in particular in drafting laws. Thus, the Armenian Center of Law (an NGO) drafted the law on the “Role of the Judge," and the Department of Law of State University submitted one of the draft civil procedure codes.

It should also be noted that countries with new have fragile economic systems, and are not able to address comprehensive reforms of the judicial and legal systems by themselves. Valuable contributions were made by several international donors. Such organizations provide great experience in designing and implementing these reforms, and ensure the provision of significant financial resources that help to sustain the reforms. In addition, the supervisory oversight of these organizations provides important safeguards for the quality of the reform.

Participants in such reforms do not always share the same goals and program of action. And in Armenia they did not always manage to coordinate the activities of all participants; nevertheless, a compromise was reached in the form of the Program of Judicial and Legal Reforms, which was adopted by the State Commission.

The importance of national leadership

Initially, one of the most basic problems in the process of reforming the judicial and legal system of Armenia was the absence of well-defined management of this process. And donors will commence financial support programs unless there is a reliable counterpart. The Parliamentary Commission assumed the initial management of the reform program. But the Government lacked the political will to adopt responsible decisions in this sphere.

The internal political situation is very important when such issues are concerned. In countries with a fragile , such as Armenia, a parliamentary or any other political crisis may have a direct effect on the course of reforms, and even sometimes on their destiny. The degree of importance of the political role of local management becomes more distinct

9 when supplementary factors are added, such as, in particular, corruption and interests of various participants of the process.

Therefore, the constitutional and legislative foundation of the reform process is of special importance. It is hard to imagine reforms where the Constitution does not provide the institutional foundations of the judicial system, the main principles of its functioning, and the timetable of reforms.

IV. The Fundamentals of the Reform Process

Scope of the reforms: tasks and objectives

The transformations in Armenia's judicial and legal system have had and still have their unique characteristics. For example, many institutions are still in a developmental phase, including the Constitutional Court, the Council of Justice, Courts of Appeals, the Council of Court Chairmen, among others. Also, judicial institutions need to undergo significant functional transformations using a procedure established by the Constitution. And, existing infrastructures and materials are insufficient for a proper functioning of the system, and no improvements have taken place in recent years. Under conditions of changing administrative-territorial divisions of the state, the material and technical basis of the judicial system needed and still needs radical improvement. This is one of the primary tasks. In addition, it will be necessary to create a substantially new and integrated system of personnel training and continuing education, and to inculcate a new organizational culture and behavior.

The Constitutional Court has become an important part of the new system. A law on the Council of Justice, which provided the foundation for its establishment and functioning, has been adopted. Also, the President appointed judges for a period of three years to regional and city courts, and procurators in the structural subdivisions of the Procurator's Office. However, all these partial transformations were not systematized and so did not lead to a substantially transformed judiciary. The main changes that would improve the judicial and legal system were still ahead.

In particular, it was necessary to create legislative and institutional guarantees, appropriate organizational structures, and guarantees for their proper functioning. To ensure a proper level of functioning, it was necessary to address training, continuing education of staff already working in the system, and informational and analytical support, among others. Moreover, reforms had to be implemented in the short-term, as the period of time specified by the provisions of the Constitution was almost over.

The State Program proposed by the Ministry of Justice, and accepted by the State Commission on Judicial and Legal Reforms, was intended to implement the above objectives. It was approved by the President August 11, 1997. According to the core idea on which the Program was based, political and economic reforms require rearrangements in the legal and judicial systems that will primarily regulate the role and functions of the judicial power in a democratic state, with a market economy, and ensure the judicial protection of rights and freedoms of citizens and economic subjects in a manner provided for in the Constitution and laws.

10 The main objective of the Program was the creation of an independent judicial power having its precise role and place in the system of and ensuring the free development of democratic principles and the protection of human rights and freedoms.

The main objectives of the judicial and legal system reforms were:

i. creating a new judicial and legal system using procedures and timetable defined by the Constitution; ii. ensuring the coordination of activities to this end; iii. setting priorities and harmonization of activities of all participants; iv. ensuring dynamics and continuity of reforms, and setting up a coordinated program of activities; v. actively engaging various parties into the Program of judicial and legal reforms; vi. defining concrete steps and the financial, material, and technical means necessary for their implementation; and vii. ensuring the coordination of activities of donor organizations and a fruitful use of foreign aid.

As the creation of a new judicial system was impossible without a relevant legal framework, the , in a February 27, 1997 decree, approved the timetable for adoption of laws necessary for the reform process, as well as those intended to improve the Armenia's legal system.

The schedule of adoption of laws necessary for the reform process

Criminal Procedure Code March 1998 Civil Procedure Code April 1998 The Law "On the Judiciary" November 1997 The Law "On the Procurator's Office" November 1997 The Law "On the Union of Advocates" April 1997

The schedule of adoption of laws aimed at the improvement of Armenia's legal system

Criminal Code (General part) November 1997 Criminal Code (Specific part) March 1998 Penitentiary Code April 1998 Civil Code (First part) October 1997 Civil Code (Second part) April 1998 Civil Code (Third part) May 1998 The Law "On Execution of Court Decisions and Judgments" August 1998 The Law "On Courts and Proceedings" June 1997 The Law "On Operative and Investigatory Activities" April 1998 The Law "On the Status of a Judge" May 1998

Key groups involved in the reform process

The following parties were involved in the development and adoption of the reform program:

• the Parliament: the Parliamentary Commission, and individual members of parliament);,

11 • the Government: the Prime Minister, the Ministry of Justice; • the Constitutional Court; • the Judiciary: the Supreme Court, the Union of Judges; • the Procurator's Office; • the State University; • non-governmental organizations: the Center for , Armenian Legal Center, etc.; and • international and foreign donor organizations: the World Bank, USAID, TACIS, GTZ, etc.

Main obstacles to the reform process

• Corruption

Corruption deteriorates the foundations of the social structure of any society, and not only impedes the evolution of social relations but also hinders the development and implementation of reforms and, in particular, judicial and legal reforms. A certain degree of corruption in Armenian society had and still has an effect on the reform process of the legal system. In particular, the corrupt state machinery is not interested in the creation of a judicial and legal system that will have the capacity to protect citizens from arbitrary actions by that machinery.

Corruption is deeply rooted. It is impossible to give an explanation of this phenomenon and to define the ways of combating it in the Armenian society more accurately than was done in a TV speech by the late Prime Minister Vazgen Sarkisyan, assassinated by terrorists in the house of parliament on 27 October 1999. He said:

"Perhaps, corruption is an eternal problem. Mankind has always fought against it. The international community today considers corruption no less dangerous than terrorism. Various international organizations today develop programs against corruption. Corruption-related problems exist in every country and everybody fights against it. However, in some countries where the state and economy are just being built corruption becomes a calamity and hinders the country's development. This is the situation in today's Armenia. It is impossible to completely eradicate corruption. Our task is to reduce its scale to such an extent that it does not hinder the country's development. also has objective reasons: poverty, consequences of the earthquake and war, imperfection of the legal framework, and geographical location. If Armenia were a neighbor to Switzerland or Germany, corruption would have hardly existed on such a scale. Another important objective reason is the historical legacy. The last decades of Soviet history were to a certain extent an era of growing total corruption and it is impossible to change this mentality in one day. In this sense the fight against corruption becomes more complicated, but realistically such a fight is possible in Armenia because our corruption is not monopolized and systematized. What is corruption? It is impossible to give a general definition of this phenomenon. It has various manifestations, such as bribe-taking, bribing and patronage. Bribery is nowadays widely spread in Armenia. However, the country's development is especially hindered by patronage. The vicious traditions of so-called "fiefdoms" hinder free development. Under such

12 conditions it is impossible to persuade the big sources of capital that operate in a civilized and lawful framework to come to Armenia to make investments. Consequently, the problem of corruption cannot be viewed only in the context of the fight against . It is a political problem. It is impossible to form a healthy environment in terms of morals and mentality in the society without a real fight against corruption".

The main condition for a successful eradication of corruption at all levels of state power is the express and visible will of the country's political leadership. Conciliatory attitudes and tolerance towards signs of corruption in public institutions cannot be justified by any political, economic or any other considerations. The general will of the people embodied in the institution of State should not, under any circumstances, suffer from selfish interests of some individuals. The State will not be able to protect citizens from crime, unless it stops its own criminality.

• Resistance on part of the old judiciary

This factor had a serious, although not a decisive, effect on the reform process of the judicial system. The factors that led to a negative attitude among the old judiciary include: traditional conservatism of the system; juridical and legal traditions; inquisitorial proceedings; and subjective perception of the reforms.

It is no secret that society always accepts changes with difficulty. In this case, the problem is more acute as we are dealing with a system conservative in its essence. Juridical and legal traditions that have been entrenched for decades during the Soviet regime allow no concessions with respect of progressive legal principles of civilized societies. Traditions of inquisitional proceedings automatically passed from one generation of to the next; and often judges felt comfortable working under such a legal regime.

Subjective factors include the fear among judges of losing their jobs and, accordingly, their special status in society. Taking into consideration that there were plans to carry out serious structural transformations in Armenia, the inevitability of renewal of the judiciary could have been predicted. It is not difficult to imagine how great the resistance on part of the adherents to the old school of judiciary was!

• Resistance on part of the Procurator's Office and other executive branches

The Procurator's Office, the police and preliminary investigation bodies showed some resistance to the reforms. The resistance on part of the Procurator's Office has a long history, starting with the development of the draft of the current Constitution, which significantly reduced the functions of this office. The proposal to annul the function of the so-called "general supervision" was met with greatest resistance. Despite this, the democratic forces managed to solve this issue within the constitutional context.

This issue surfaced again when the draft Law "On the Procurator's Office" was being developed. In this case it attempted to give a broad interpretation to the constitutional power of the Procurator's Office to bring proceedings in the protection of state interests. This was an attempt to reinvigorate the function of "general supervision,” luckily an unsuccessful one. However, the conservative approach of investigation and inquiry bodies left its mark on the

13 process of improvement of criminal procedure--its transformation from inquisitional proceedings to an adversarial criminal process.

• Absence of tangible public support

The successful outcome of any reform greatly depends on widespread public support. Unfortunately, the process of building a new judicial and legal system did not have special public support. Even though there was no general resistance there was no serious support either. Society as a whole tolerated the process. The reason for this was the general distrust of the judicial system, which partly grew into distrust of the outcome of the judicial and legal reforms.

Again, unfortunately, there are signs of distrust even today (post-reform period). According to the results of a survey conducted by independent experts, with the support of the World Bank, the society expressed serious doubts about the honesty and impartiality of "administrators" of justice. 26% of respondents had difficulty answering the question concerning individual qualities of judges. From a range of concrete qualities, "decency" and "professionalism" received the highest percentage (25% and 22%, respectively). "Honesty," as a professional quality of an Armenian judge, was chosen only by 2% of the respondents.

On June 18, 2000, the Helsinki Association made a declaration strongly criticizing the system of justice in Armenia and cast doubt on the effectiveness of the judicial reforms taking place there. The representatives of this human rights organization stated at a press conference that they would make all the possible efforts to stop Armenia from acceding to the Council of until the authorities became seriously engaged in the reforms, at least the reforms of the courts, in practice and not in theory.

The reasons for such an unsatisfactory situation are: (i) the absence of sufficient legal information; (ii) signs of corruption in the judicial system that negatively affects public opinion; and (iii) no concept of public relations management within the judicial system.

• Lack of understanding of the importance of the reforms by the mass media

The support of reforms on the part of the mass media is important in itself, but is especially important as a factor influencing public opinion. The role assigned to mass media in the sphere of legal advocacy and informing the public about the judicial and legal system is clear. The data below illustrate the results of an opinion poll conducted among various segments of population in early 2000.

Sources of of Armenia’s population

100% 87%

41% the mass media 50% the judicial and legal system 16% the State apparatus 9% the environment 14 0% 1 The results of the same opinion poll show that the majority of population is not informed about the judicial and legal reforms (42%) or have very superficial knowledge about them (47%).

The population itself rates its legal awareness as low. Thus, on a five-point scale almost 60% of population rate their legal knowledge at between 1 and 2.

Population's own rating of its knowledge of the judicial and legal system in Armenia

4--5

3

1--2

Under such conditions0 it is unrealistic20 to think406 about a significant08 support 0

IV. The Results of the Reform Process to Date

The judicial system after completion of the first phase of the reform

What results has the judicial system achieved during the period after launching the reform efforts? The first result is obvious: the judicial system managed to continue to smoothly exercise its functions of administration of justice. A second result is the reduced influence of the executive branch over the judicial. The judicial system not only received budgetary and financial independence but also the authority of the Minister of Justice in the sphere of disciplinary responsibility of judges, which was subject to thorough regulation. A third positive tendency was in the attitude of the society towards the judiciary. Within the first nine months of 1999, 22,183 civil cases were brought before the courts of first instance, whereas within the same period in 1997 the number of civil cases was 15,568, and in 1998 slightly less, at 15,443. These statistics suggests the trust of the judicial system has increased.

Fourth, the judicial system acquired features of an independent branch of government. In particular, a central body of judicial self-governance, the Council of Court Chairmen, was created. This body, which in its essence has no analogues in other countries, was created on the basis of the law "On the Judiciary". It is a collegial body composed of the chairmen of courts of first instance, courts of appeals and the chairmen of the of the Court of Cassation. The Chairman of the Council is ex officio the Chairman of the Court of Cassation. The Council is in charge of organizational matters, as well as matters connected with the proper functioning of the judicial system. And, fifth, some important guarantees of judge's independence, such as his/her irremovability, and material and social protection of work (this factor cannot be really considered an achievement as many of the legislative requirements still remain on paper until today), was confirmed in legislation and practice.

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Nevertheless, the functioning of the judicial system still has many shortcomings. It is still far from the role of a guarantor of democratic institutions and human rights and freedoms. It is impossible to have an effective judicial and legal system unless the country has a developed association. In the early years the role of the Bar was minimized to the extent that the advocates only acted as mediators between the and the judge. The new procedural legislation radically changed the situation by creating equal status for the defense and the prosecution in criminal procedure, and for the and the respondent in civil procedure. The transition to an adversarial process was ensured by the sound participation of advocates in the process of collecting and evaluating , and the law "On " stipulated the necessary requirements for formation and development of independent of advocates.

One of the main elements of the judicial and legal reforms was the reforming of the system of execution of court decisions. The ineffective system of bailiffs attached to the courts was transformed into a centralized body within the executive branch, which radically improved the lamentable situation existing in this sphere before. It is sufficient to note that, in contrast to the performance indicators of the previous judicial system, the effectiveness of execution of court decisions in terms of pecuniary penalties has increased almost tenfold. In addition, the courts have been freed from a non-inherent function: the responsibility for execution of court decisions that have entered into legitimate force should be borne by the executive power.

No less important was the reforming of the Procurator's Office. The absolute exclusion of the Procurator's Office from the civil procedure (except, of course, the protection of the State's interests) was the most significant step towards securing the equality of parties.

Further development of the judicial and legal reform process

On March 7, 2001 the National Assembly ratified the Agreement between the and the World Bank on an extension of a credit for the support of the judicial and legal reforms. The credit program is aimed at supporting the activities of the judicial system and the efforts of the Armenian Government to improve the legal system. Armenia's judicial system as a whole supports the concept embodied in the program, but also considers that the activities of various public bodies and other institutions aimed at supporting the continuity of the reforms need to be activated.

Armenia's accession to the Council of Europe opens new perspectives for acceleration of judicial reforms in our country and creates additional possibilities for the protection of human rights and freedoms based on generally accepted principles and norms of .

Today, there is a need of an on-going reform of the judicial system. This process should acquire a stable nature with the ultimate aim of creating a state truly based on the . Only then can the country's sustainable development and progress be ensured.

At present, the courts experience an acute lack of qualified personnel, which continues to be reduced in number because of poor salaries and a feeling of insecurity. The courts of first instance are overloaded with cases, which often causes lengthy delays in

16 proceedings. Very often the courts find themselves in a humiliating material and financial dependence on the executive branch. An unacceptable practice of non-execution or delayed execution of court decisions has developed. All this erodes the authority of the judicial branch.

Unlike the reforms of the judicial system, legal reforms require a continuous, if not a permanent process. In any case, that is the situation in Armenia. Even though the legal reforms were being carried out actively, this process did not have a systemic nature. There was no single legislative center which could develop the main trends of legislative policy, and the Government did not try, even once, to develop the concept of Armenia's legislative evolution. Today, this is a pressing need.

One example would be enough to demonstrate the destructive consequences for our legal system caused by the absence of such a concept. Almost all fundamental laws and codes were drafted with the support of the experts of various international organizations. However, the absence of a single policy generated laws in our legal framework that belong to different legal systems. One part of the laws were drafted based on principles of the continental legal system, another part based on principles of the Anglo-American legal system, and a third part based on principles of Russian legal traditions. Clearly, the legal framework created from such a mixture does not create favorable conditions either for the economic life of the country or for the process of building a state based on the rule of law.

The main objectives of the judicial reforms for the near future are the continuous formation of the legislative foundation of the judicial power, the staffing of courts of all instances and the development of practice of direct application of the Constitution, especially in the sphere of respect for human rights and freedoms.

To meet these goals, it will be necessary to:

• closely follow, in the course of the judicial reforms, the generally accepted principles and norms of international law and instruments of the Council of Europe, and • consider the following to be the main objectives of the judicial and legal reforms for the near future: • - completion of development of the legislative foundation of the judicial reforms (draft Criminal Code, draft Administrative Code, draft Law "On Operative and Investigatory Activities," etc.) whose inadequacy remains a serious obstacle for the judicial and legal reforms; - resolution of the issue of specialized courts in Armenia; - creation of specialized administrative and economic courts; - increase in effectiveness of the judicial branch and court proceedings through improvement and differentiation of types of court proceedings; - reforming of the Council of Justice, exclusion of representatives of the Procurator's Office from its membership, and creation of an efficient body of judicial self- governance; - solution of human resources problems within the context of the judicial reforms (training, re-training and continuing education of judges, court personnel, advocates and law-enforcement officials); - strengthening of the judicial supervision over preliminary investigation in conformity with the ;

17 - reforming of the body of the judicial community, the Council of Court Chairmen, by introducing strengthening mechanisms and conferring on it tangible powers of managing the organizational matters of the judicial system; - development of an effective mechanism of court administration (organizational supervision over the work of court administrations by a central body); - full application of the constitutional principle of independence and irremovability of judges; - application of the constitutional provision proclaiming a right of everyone to qualified legal assistance; - improvement of the legislation on bankruptcy, and creation of a system for licensing of managers and receivers; and - improvement of the civil code and introduction of remedies for “moral” (non-physical damages).

VI. Main Lessons of the Reform Process

The experience of carrying out the judicial and legal reforms and the necessity of proceeding with these reforms point to the importance of drawing conclusions, analyzing data, and understanding the main lessons.

The main problem is the issue of risks. It is impossible to have a realistic and sound reform program without a serious evaluation of risk factors. The analysis of past reforms shows that the developers of the reform project did not fully take into account some factors influencing the reform process, in particular:

- comparison and evaluation of interests of all participants in the process; - neutralization of negative effects caused by groups not interested in certain trends of the reforms; - coordination of activities of those participants who are interested in implementation of the project; - support by the mass media to form a favorable public opinion; - securing the support by various segments of population and social groups through advocating the importance of the reforms for them; and - ensuring proper financing of the project and of all its components.

All these objectives can be achieved only on one condition: if the Government guarantees a clear and stringent policy of reform developments. A slight hesitation or a doubt about the correctness of the developments brings a slowing down and weakening of the process, which, in turn, makes it difficult to continue the process. A classic example of this is the drafting of the Law "On Operative and Investigatory Activities." The absence of a single approach to the draft within the Government itself resulted not only in violation of the timetable set for its adoption in the reform program but also a delay to this day.

As noted, favorable public opinion is extremely important for successful implementation of the reform program. A government that strives to build a single and favorable public opinion creates priceless support for the implementation of the program.

18 No less important is the cooperation with NGOs involved in the reform process. Such organizations as higher education and scientific institutions have a special place among these. In any case, Armenia's experience shows that the Law Department of State University made a significant contribution to the process; however, this contribution was non-planned, spontaneous, abrupt and presented from a competitive angle, which did not produce optimum results. The absence of a clear policy within the Government is once again to be blamed for this.

One of the decisive parts of the reform process is the support by international and foreign donor organizations. In this connection, the Armenian Government made significant progress. During the previous period of reforms until today the Government succeeded in fruitful cooperation with many donors, in particular, the World Bank, USAID, and some institutions of the Council of Europe, among others. Today, the Government has to solve two important problems: the problem of coordination of activities of donor organizations, and the limits on their participation in the projects under the reforms.

The analysis of lessons drawn from the reforms cannot be productive unless opinions of all the participants are taken into account. These are the judicial community, scholars, advocates and the Procurator's Office. At this stage there are specific analyses and proposals by various participants. For example, on March 10, 2001 the Council of Court Chairmen, having considered the judicial practice for the year 2000 and the results produced by the judicial system, decided to create a commission for the development of legislative proposals aimed at the improving the functioning of the judicial system. The Court of Appeals on Economic Cases has developed and submitted to the Government a draft law establishing an Economic Court of Armenia. Some advocate groups involved in arbitration practices are in a process of developing a draft Law "On Arbitration Courts and Arbitration Proceedings."

Today, there is a need to distill the results of the reforms and opinions of various participants to gain an objective view of the current situation. The above issues and challenges are pressing and their solution must not be delayed. They are of primary importance because reform processes must have continuity. For this reason, activities will need to be optimized and a clear and substantiated policy developed .

The basis for continuation of the reforms is their social necessity and the irreversibility of democratic processes. A Decree of Alexander the II on judicial and legal reforms that were taking place in Russia in the middle of the nineteenth century is worth repeating:

"…having considered these projects, we find that they conform to our desire to establish speedy, just, merciful and equal for all our servants courts in Russia, to elevate the judicial power, to give it the proper independence and, in general, to entrench in our people the respect for law without which it is impossible to have social welfare and which has to serve as ever-lasting guidelines for the behavior of all and each at the top and the bottom of society.”

These words seem true even today, more than a century later.

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