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"NEW JUDICIAL-LEGAL SYSTEM HAS HIGHER INDEPENDENCE GUARANTEES," ASSURES DAVIT HARUTYUNYAN
Noyan Tapan
Feb 21, 2008
YEREVAN, FEBRUARY 21, NOYAN TAPAN. On January 1, the judicial-legal
system of Armenia entered a new stage of development. New specialized
courts began to operate (in Yerevan, Dilijan and Jermuk), the functions
of the former courts were thoroughly changed. Our interview with
Davit Harutyunyan, the Chairman of the RA National Assembly Standing
Committee on State and Legal Affairs, former Minister of Justice,
is about that.
H. K.- Which are the novelties of principle of the new judicial system?
D. H.- First, the key goal of the Cassation Court is to insure similar
exercise of laws, and not to correct the mistakes of other instances.
There is an opinion that the more judicial instances there are, the
more is the possibility to reach objective truth. Thus, many countries,
which are in a more good condition, have chosen mainly the principle
of the two judicial instances, i.e. there is one instance which gives
that judicial act and another instance which rechecks that act in
order to avoid judicial mistake.
As for the higher instance, then its main problem really is the
similar exercise of laws and the development of right.
We also changed the structure of the judicial system: the economic
court was disappeared, the courts of common jurisdiction were created,
which solve civil and criminal cases of certain category as well as
cases of administrative liability.
Q. So, how is the so-called former court of first instance called now?
A. It is called the common jurisdiction court of first instance,
besides that three other courts of first instance were created
on specialized civil, criminal and administrative cases, which in
cases stipulated by law solve more difficult cases. The thing is
that the cases, which are not difficult, are many and they should
be maximum drawn nearer to people. The specialized courts can not be
located everywhere, they are only three: the Northern (in Dilijan),
the Southern (in Jermuk) and the specialized courts of Yerevan.
Thus, there are three types of specialized courts - civil, criminal
and administrative. The latter examines cases between the state and
citizen, state and juridical person, sometimes even between two state
bodies if those problems can not be solved by the order of superiority.
As for the Cassation Court, then though the chambers (criminal and
political) were preserved there, an important step was taken, in
my opinion very effective. It is that the Cassation Court with its
all staff hears the case. That is, all the seven judges of the two
chambers, irrespective of their specialization, take part in hearing
of any case at the same time.
This is important because when we speak about similar exercise of
a law.
Sometimes the outside look, not the professional one, permits to
bring to light vicious approaches, which were formed traditionally
in legal consciousness and it was time to change them.
Besides the structure of the judicial system, the function of the
second instance, the Appellate Court, was changed. Before the Appellate
Courts were re-examining or examining the case, disregarding the fact
that there already existed the judicial act of the first instance. And
in the present judicial system we suggest them to review, re-check
the case and to find out its correspondence to law demands. That is,
the Appellate Court, in the true sense of the word, does not conduct
lawsuit but re-checks the verdict brought in by the first instance.
As a rule, the sides are deprived of the possibility to present
new evidences in the Appellate Court. Before this, they considered
that "whatever you do, all the same, we will go to the Appellate
Court." Here the first important step is that now the sides are
obliged to bring all the evidences just in the first instance. We
also took the second important step, how the evidences should be
presented. Henceforth, the evidences should not presented as a surprise
during the judicial process with the aim that the other side will not
be able to orient itself and make decision what arguments he should
bring. The judicial process should maximum prepared and the sides
should exchange their main arguments to the maximum extent until
the judicial sitting. And their evaluation is done during the court
session , the judge on the basis the evidences comes to a conclusion
that this or that fact existed or not.
Q. Have you had advisers from abroad and have you strived for coming
closer to some existing system, American, British or European?
A. We didn't try to come closer to some distinct system because every
country has its peculiarities. But this refers to structure, and in
all other issues we of course admitted the experiences of many other
countries, successful and unsuccessful. We have tried to plan what
kind of problems are more primary for us in this stage because today
we can not write an ideal judicial code. But we have written norms,
which will promote the development of our system, and here we have a
program for at least 8-10 years until the next stage of reforms. Of
course during these 8-10 years they will get settled as well, new
institutions will be created.
Q. It is a bit surprising that the economic court was liquidated,
while it was spoken about as a successful one.
A. Before, when there were only courts of common jurisdiction, it was
obvious that there should be also a specialized court in the first
instance, which will examine the most difficult cases connected with
the entrepreneurial activity. But we should consider the creation of
economic court not only for the economy but as a specialized court
for examining comparatively difficult cases in the sphere of civil
right. The attempt of the economic court was a successful one as much
as the specialized economic court was effective and based on it the
specialized court on civil cases was created.
Q. And what news is there with regard to selection of judges and to
the provision of their independence?
A. If before a considerable role was preserved for the Ministry of
Justice, then the new Constitution refused from that institution. The
judicial code came to strengthen the provision that the executive power
should not take part in the formation of judicial system. The executive
process itself should be rather transparent. The law conditioned by
that has envisaged very detailed processes on how the judicial system
is created, in what form the filtration is done because a good lawyer
not always becomes a good judge.
Such transparent mechanisms have been introduced also for the
advancement of judges.
The second important change is that another concept was introduced. A
person who passes through this election process cannot become
a judge if he does not leave the corresponding school, which is
called a judicial school. The judicial school not only prepares the
future judges, but also serves for the permanent retraining of the
judges. Every judge must always pass retraining.
Not passing retraining is a ground for the judge to be relieved of
his/her responsibilities.
The issue of the judges' disciplinary responsibility is another
question.
The code defined the role of the Justice Council as a judicial body,
which examines a case within the framework of which, different people
who sued disciplinary examination (it can be the Minister of Justice,
the Chairman of the Appellate Court, etc.) bring charge to the judge
and the process itself is rather a judicial process.
This statement of a question emerged much earlier, we had discussions
with the Council of Europe around this issue immediately after the
joining, and took that responsibility, so they were predictable
changes and some part of them were done much earlier not waiting for
the January 1. A considerable part of the judicial code came into
force still at the beginning of 2007.
Including the disciplinary examination, the appointment of judges.
Q. Is the independence of this new judicial system of a higher degree?
A. Indeed, today the guarantees of independence are of a higher
degree. Two things are missing. First it is the proper salary, which
is very often spoken about: isn't it an attempt to bribe the judges
for not taking bribes.
No, it is the evaluation of a judge's status. A judge should receive a
salary proper to his work's responsibility. In Armenia the salary of
a judge is the lowest one among the member countries of the Council
of Europe, if I am not mistaken.
The second thing, which is missing, is of course the political
will. There is still a lack of political will among us, there are
not processes towards the state officials who have made an attempt
to have influence on the court.
The day when the first state official will stand in front of the court
for it, we can say from that moment that the main stone of judicial
independence is provided. Today we have taken the following step:
the judge can undergo responsibility if the attempt of influence on
him is not find out. But I am not sure that the mechanism is already
functioning. Today the mechanisms exist only on papers, not all
of them operate, but when they exist on papers then they little by
little will began operating. Be sure that soon we will have judges
who have undergone such disciplinary responsibility , because the
opposite side, who will not be satisfied with the judicial act can
present the corresponding evidences.
Q. And the last question. Will all this new judicial-legal system
give us ground to say that this present electoral campaign will in
some way differ from the previous one?
A. If the sides wish, they can make use of opportunity of judicial
defense, which is wider in comparison with the time before and today
exists in the new judicial-legal code. The electoral arguments are
the brightest example, and as you know, the considerable part of the
electoral arguments is settled in courts during presidential elections
and only the result is subject to argumentation in the constitutional
court. And now, a code of administrative lawsuit is adopted which
has given a detailed regulation for electoral arguments.
When hearing the case, the administrative court is entitled to
clarify the real results of the ballot the way the Central Electoral
Commission could do when summing up the results. As regards the
electoral violations, if the Constitutional Court sees that the
violations are of repeated character it has a right to assume that
there is "intention ". All these are serious steps towards democracy.
Noyan Tapan
Feb 21, 2008
YEREVAN, FEBRUARY 21, NOYAN TAPAN. On January 1, the judicial-legal
system of Armenia entered a new stage of development. New specialized
courts began to operate (in Yerevan, Dilijan and Jermuk), the functions
of the former courts were thoroughly changed. Our interview with
Davit Harutyunyan, the Chairman of the RA National Assembly Standing
Committee on State and Legal Affairs, former Minister of Justice,
is about that.
H. K.- Which are the novelties of principle of the new judicial system?
D. H.- First, the key goal of the Cassation Court is to insure similar
exercise of laws, and not to correct the mistakes of other instances.
There is an opinion that the more judicial instances there are, the
more is the possibility to reach objective truth. Thus, many countries,
which are in a more good condition, have chosen mainly the principle
of the two judicial instances, i.e. there is one instance which gives
that judicial act and another instance which rechecks that act in
order to avoid judicial mistake.
As for the higher instance, then its main problem really is the
similar exercise of laws and the development of right.
We also changed the structure of the judicial system: the economic
court was disappeared, the courts of common jurisdiction were created,
which solve civil and criminal cases of certain category as well as
cases of administrative liability.
Q. So, how is the so-called former court of first instance called now?
A. It is called the common jurisdiction court of first instance,
besides that three other courts of first instance were created
on specialized civil, criminal and administrative cases, which in
cases stipulated by law solve more difficult cases. The thing is
that the cases, which are not difficult, are many and they should
be maximum drawn nearer to people. The specialized courts can not be
located everywhere, they are only three: the Northern (in Dilijan),
the Southern (in Jermuk) and the specialized courts of Yerevan.
Thus, there are three types of specialized courts - civil, criminal
and administrative. The latter examines cases between the state and
citizen, state and juridical person, sometimes even between two state
bodies if those problems can not be solved by the order of superiority.
As for the Cassation Court, then though the chambers (criminal and
political) were preserved there, an important step was taken, in
my opinion very effective. It is that the Cassation Court with its
all staff hears the case. That is, all the seven judges of the two
chambers, irrespective of their specialization, take part in hearing
of any case at the same time.
This is important because when we speak about similar exercise of
a law.
Sometimes the outside look, not the professional one, permits to
bring to light vicious approaches, which were formed traditionally
in legal consciousness and it was time to change them.
Besides the structure of the judicial system, the function of the
second instance, the Appellate Court, was changed. Before the Appellate
Courts were re-examining or examining the case, disregarding the fact
that there already existed the judicial act of the first instance. And
in the present judicial system we suggest them to review, re-check
the case and to find out its correspondence to law demands. That is,
the Appellate Court, in the true sense of the word, does not conduct
lawsuit but re-checks the verdict brought in by the first instance.
As a rule, the sides are deprived of the possibility to present
new evidences in the Appellate Court. Before this, they considered
that "whatever you do, all the same, we will go to the Appellate
Court." Here the first important step is that now the sides are
obliged to bring all the evidences just in the first instance. We
also took the second important step, how the evidences should be
presented. Henceforth, the evidences should not presented as a surprise
during the judicial process with the aim that the other side will not
be able to orient itself and make decision what arguments he should
bring. The judicial process should maximum prepared and the sides
should exchange their main arguments to the maximum extent until
the judicial sitting. And their evaluation is done during the court
session , the judge on the basis the evidences comes to a conclusion
that this or that fact existed or not.
Q. Have you had advisers from abroad and have you strived for coming
closer to some existing system, American, British or European?
A. We didn't try to come closer to some distinct system because every
country has its peculiarities. But this refers to structure, and in
all other issues we of course admitted the experiences of many other
countries, successful and unsuccessful. We have tried to plan what
kind of problems are more primary for us in this stage because today
we can not write an ideal judicial code. But we have written norms,
which will promote the development of our system, and here we have a
program for at least 8-10 years until the next stage of reforms. Of
course during these 8-10 years they will get settled as well, new
institutions will be created.
Q. It is a bit surprising that the economic court was liquidated,
while it was spoken about as a successful one.
A. Before, when there were only courts of common jurisdiction, it was
obvious that there should be also a specialized court in the first
instance, which will examine the most difficult cases connected with
the entrepreneurial activity. But we should consider the creation of
economic court not only for the economy but as a specialized court
for examining comparatively difficult cases in the sphere of civil
right. The attempt of the economic court was a successful one as much
as the specialized economic court was effective and based on it the
specialized court on civil cases was created.
Q. And what news is there with regard to selection of judges and to
the provision of their independence?
A. If before a considerable role was preserved for the Ministry of
Justice, then the new Constitution refused from that institution. The
judicial code came to strengthen the provision that the executive power
should not take part in the formation of judicial system. The executive
process itself should be rather transparent. The law conditioned by
that has envisaged very detailed processes on how the judicial system
is created, in what form the filtration is done because a good lawyer
not always becomes a good judge.
Such transparent mechanisms have been introduced also for the
advancement of judges.
The second important change is that another concept was introduced. A
person who passes through this election process cannot become
a judge if he does not leave the corresponding school, which is
called a judicial school. The judicial school not only prepares the
future judges, but also serves for the permanent retraining of the
judges. Every judge must always pass retraining.
Not passing retraining is a ground for the judge to be relieved of
his/her responsibilities.
The issue of the judges' disciplinary responsibility is another
question.
The code defined the role of the Justice Council as a judicial body,
which examines a case within the framework of which, different people
who sued disciplinary examination (it can be the Minister of Justice,
the Chairman of the Appellate Court, etc.) bring charge to the judge
and the process itself is rather a judicial process.
This statement of a question emerged much earlier, we had discussions
with the Council of Europe around this issue immediately after the
joining, and took that responsibility, so they were predictable
changes and some part of them were done much earlier not waiting for
the January 1. A considerable part of the judicial code came into
force still at the beginning of 2007.
Including the disciplinary examination, the appointment of judges.
Q. Is the independence of this new judicial system of a higher degree?
A. Indeed, today the guarantees of independence are of a higher
degree. Two things are missing. First it is the proper salary, which
is very often spoken about: isn't it an attempt to bribe the judges
for not taking bribes.
No, it is the evaluation of a judge's status. A judge should receive a
salary proper to his work's responsibility. In Armenia the salary of
a judge is the lowest one among the member countries of the Council
of Europe, if I am not mistaken.
The second thing, which is missing, is of course the political
will. There is still a lack of political will among us, there are
not processes towards the state officials who have made an attempt
to have influence on the court.
The day when the first state official will stand in front of the court
for it, we can say from that moment that the main stone of judicial
independence is provided. Today we have taken the following step:
the judge can undergo responsibility if the attempt of influence on
him is not find out. But I am not sure that the mechanism is already
functioning. Today the mechanisms exist only on papers, not all
of them operate, but when they exist on papers then they little by
little will began operating. Be sure that soon we will have judges
who have undergone such disciplinary responsibility , because the
opposite side, who will not be satisfied with the judicial act can
present the corresponding evidences.
Q. And the last question. Will all this new judicial-legal system
give us ground to say that this present electoral campaign will in
some way differ from the previous one?
A. If the sides wish, they can make use of opportunity of judicial
defense, which is wider in comparison with the time before and today
exists in the new judicial-legal code. The electoral arguments are
the brightest example, and as you know, the considerable part of the
electoral arguments is settled in courts during presidential elections
and only the result is subject to argumentation in the constitutional
court. And now, a code of administrative lawsuit is adopted which
has given a detailed regulation for electoral arguments.
When hearing the case, the administrative court is entitled to
clarify the real results of the ballot the way the Central Electoral
Commission could do when summing up the results. As regards the
electoral violations, if the Constitutional Court sees that the
violations are of repeated character it has a right to assume that
there is "intention ". All these are serious steps towards democracy.