The level of effective realization of the right to a fair trial is directly proportional to the level of the effectiveness of judicial system of the given state.
The passing year of 2013 hasn’t brought any significant changes in respect to the securing of the right to a fair trial. Civil Society Institute NGO notes, that systemic problems which were frequently raised during the previous years are still urgent today.
In particular, according to experts:
-In our country the independence and impartiality of courts is not guaranteed and they are still dependent on public prosecution service: in other European countries acquittals make up to 30% of all the cases reviewed whereas in Armenia courts issued acquittals in 3% of all cases (in comparison with the previous year this indicator increased by 1%).
-The principle of equality of arms and adversarial proceedings is violated by courts, they are manifestly biased towards the prosecutor.
-Claims about instances of torture and mistreatment committed at the stage of pretrial investigations are either ignored or do not become a subject of effective investigation.
-Decisions on imposing or prolongation of pretrial detention are not well substantiated by courts.
The special Report of the Ombudsmen of Armenia published in December, 2013 also referred to the issue of how to guarantee the right to a fair trial in Armenia. The Report made a stir, because it contained information on the “standard” amounts and mechanisms of bribery in Armenian judicial system. The information is based on anonymous surveys. Amid all the noise less attention was paid to the second part of the Report, which summarized recent decisions of the Court of Cassation and the Justice Council of Armenia and demonstrated by real facts the practice of double standards and arbitrary interpretation of law.
In August-October the public attention was focused on so-called “Haystack” case. On October 4, 2013, the violations of the right to a fair trial in the case were brought to the attention of the Prosecutor General Gevorg Kostanyan by the “Civil Society Institute” NGO in the form of an open letter. From the violations registered particular emphasis was put on the prolonged arbitrary confinement of the four accused persons in police department, improper formulation of the subject of the crime charged and arbitrariness of the decision on detention during both pretrial and trial stages of the case. According to the lawyer representing Aram Mughalyan (one of the accused), during the court hearing of the motion to alternate pretrial detention with bail the prosecutor while pleading against the motion for bail said that the accused person is not able to abscond or evade investigation, but he [the prosecutor] is of an opinion that Mughalyan should remain in custody.
It is obvious that the practice of ill-founded and unjustified pre-trial detentions creates additional problems for the state, however it is expected that these issues will be resolved by the new Criminal Procedure Code, which has been drafted since 2011 and is still at the discussion stage. During one of the regular discussions The Minister of Justice Hrayr Tovmasyan expressed his hope for the significant advancement in the field of criminal justice after the adoption of the new Criminal Procedure Code.
The Draft Criminal Procedure code provides for alternative measures of restraint such as house arrest, administrative supervision etc. According to the Minister of Justice those measures will unload penitentiary institutions and pretrial detention will be chosen as a measure of restraint only in those cases when all the others measures are insufficient and may not be applied.
The provision of the Draft Criminal Procedure Code stating that self-incriminatory statements may not be regarded as the only ground for indictment when there is no other sufficient evidence is of a particular interest. This is particularly important in regard to the suppression of the vicious practice of torture and mistreatment committed with the view of obtaining self-incriminatory evidence.
One of the elements of the right to a fair trial is the victim’s right to redress, which in criminal cases means the identification and prosecution of those responsible for the crime. In regard to this issue particular concerns are raised by the fact that the amnesty declared in connection with 22nd anniversary of Armenia's Independence included two policemen convicted and sentenced for torture of Robert Hovsepyan.
The Civil Society Institute made a statement in this regard noting that such attitude is in contradiction to the obligations assumed by Armenia under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and violates the right of torture victim to get full and adequate compensation.
Moreover, according to the UN Committee against Torture “amnesties or other impediments which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment violate the principle of non-derogability”.
By Ani Vardanyan