The European Court of Human Rights (ECHR) makes decisions one after another against Armenia. According to lawyers, the reason lay in systemic problems, and the number of decisions against Armenia will continue to increase. The Ministry of Justice states that the problem is in legislative discrepancies, which are in the process of smoothing out.
On 9 October, 2012, ECHR adopted two more decisions against Armenia in the series of cases related to expropriation of private houses on Byuzand street in favor to public benefit. The decisions require payment of fine in 131 thousand euro from the state budget.
The Court, during hearings of the cases received in 2005 “Tunyan and others v. Armenia” and “Danielyan and others v. Armenia”, found out that in the process of construction in the Byuzand street, the proprietary rights of inhabitants - applicants of the cases - were violated in the first clause of the First Protocol of the European Convention on Human Rights.
The construction company, working on the project of expropriation in favor of public benefit, did not respect proprietary rights of all inhabitants. The judges’ mistake caused payment of a fine in almost half a million euro from the state budget.
As stated in the ECHR 2012 Report, about 800 complaints have been sent to the ECHR from Armenia. Until now, the Court has made 42 decisions against Armenia, 15 of which were adopted only this year. Based on these 42 decisions, our government is obliged to pay its citizens out of the state budget about 440 thousand euro, of which 225 thousand euro have been paid already.
According to the Deputy Minister of Justice Rouben Melikyan, the increased number of decisions can be explained by the fact that the ECHR has started to consider cases sent to them after 2005-2007, which are better framed than the previous ones. “A big portion of the ECHR decisions and, particularly, those made in 2012 relate to legislative issues. We had a legislation, which did not correspond to the European Convention but was applied in Armenia,” says Mr Melikyan and adds that legislative reforms have been undertaken to bring the national law into compliance with the European Convention on Human Rights.
“Nevertheless, we cannot have a perfect situation, for the European Convention is a living instrument, and the European Court continuously make new interpretations of it,” says the deputy minister.
The lawyers, however, believe that the reason does not lay in legislation. Lawyer Lousine Sahakyan says that the problem is in application of the law: if before the judges violated human rights and did know the European Convention, now the situation. “Now the judges know more, but the number of violations also increases. The judges now know which clause of the European Convention they violate, but still adopt unfair decisions. The basis is in the system,” says the lawyer. She believes that the number of ECHR decisions against Armenia will increase in near future. “Human rights violations continue and nobody takes measures to prevent it. To date, changes have been made only in legislation, but the situation is not going to improve if we continue to have issues in application of the law,” believes Ms Sahakyan.
Lawyer Seda Safaryan thinks that if all RA citizens who have unfair court decisions at the national level challenge these decisions in the ECHR, then two out of every three decisions would be sent to the European Court. “Yet nobody likes to wait for years until the ECHR consider their case. People are ready to get partial satisfaction within their national system. Only a few and those who have extremely unfair cases apply to the European Court,” she says. The lawyer notes that the RA laws are not that bad, they simply need to be implemented: “The problem is not in the laws, but in the lack of willingness to change anything. A malpractice is established and they do not want to change it,” says Ms Safaryan.
In contrast to the lawyers, Rouben Melikyan says that it is not possible to predict the number of decisions against RA. “The criteria are in constant amendment. We do not know what new criteria the ECHR will have next year. We also have a problem with current legislation. Sometimes the law is stricter and provides for higher protection criteria than the government is able to guarantee. In these cases it is not excluded that we will have similar decisions of the European Court,” observes the deputy minister.
He believes that in Armenia human rights will be better protected when the new Criminal Procedure Code is adopted and comes into force. At present, the code is in the process of drafting, and as Mr Melikyan states, the criteria of the ECHR are considered in the draft. The Deputy Minister of Justice says that seminars on implementation of the new Criminal Procedure Code will be organized, so it is implemented correctly. “However, we cannot secure that wrong implementation of the law be eliminated,” says Mr Melikyan.
Should judges be punished or should not for making wrong decisions?
Lawyers and state officials have different attitude toward this question.
The deputy minister of justice insists that punishment of judges will hinder independence of judiciary: “We cannot put the responsibility over the law-enforcement body after each decision. Let us imagine that the judge has to pay a fine imposed by the ECHR decision. I do not think that we will have a professional and efficient court system, people will just refuse to work there.”
Lawyer Lousine Sahakyan believes that the rationale for wrong decisions is that ordinary citizens pay for it, and the state officials responsible for wrong decisions are not punished: “If they know that their mistake may be followed by their personal financial responsibility, they will become more cautious or at least they will present the possible consequences to those who forces them to adopt wrong decisions. In countries like Armenia, where judges are not independent, it is not possible to bring people into the legal realm without affecting their finances.”
We should indicate that Armenia is not much different from its neighbors in relation to negative decisions adopted by the European Court against them. The total number of ECHR decisions against Armenia is 42, against Georgia- 49 and against Azerbaijan -59.