Repeatedly violation of the right to fair trail is one of the most important issues in the Armenian judicial system.
The European Court of Human Rights has found violation of the right to fair trail in 13 cases against Armenia from 2008 to 2011.
The legislative guarantees insuring the independence of judicial system from the president of the republic is not efficient and absolute. This is a serious obstacle for the protection of the right to fair trail. Though the Justice Council is responsible for the list of judicial candidates and official promotion lists of judges, the President has the right of appointing "candidates [for the position of judges] acceptable to him" (Article 117(4) of the RA Judicial Code) and of "issu[ing] a decree supplementing the Official Promotion List of Judges" (Art. 137(9), Art 138(8) of the RA Judicial Code).
Moreover, if there is no presidential approval of a candidacy, the candidate is considered to be rejected and is left out of the whole process. According to the current legislation, the president is vested with discretionary powers that may result in abuse and bias[1].
Furthermore, monitoring results demonstrate the courts dependence on the prosecution office and the fact that proves this statement is that there are almost no acquittal sentences. 2010 statistics on acquittal sentences can serve as an example. According to it there were only 31 cases with 39 defendants that were awarded partial or full acquittal and this constitutes less than one percent of all the verdicts. All the newly appointed judges over the last year used to be prosecutors or police officers[2].
Equality of arms between the prosecution and the defense is grossly violated at trail proceedings. Judges often manifest prejudice and do not treat the parties equally, giving the preference to the prosecution and having negative attitude towards the defense. The pleadings of defense to call witnesses, to have forensic examinations, or to present new evidence are generally rejected by the court often without any justification.
Moreover, courts often do not take into consideration the statements of witnesses that they were compelled to testify during pre-trail investigation. These statements are not protocoled in an appropriate manner and courts do not demand the prosecution to investigate the cases[3].
Judicial control over detention and arrest is not always in compliance with international standards and requirements of national legislation. Custody decisions are not reasoned properly, and address the facts in the individual cases, but rather contain standard general phrases. Notwithstanding the principle that pre-trial custody should be the exception rather than the rule, custody was habitually extended for the maximum possible period, and alternative measures of restraint were seldom explored, frequently leaving the respective defense motions unaddressed[4].
Results of court monitoring show that there are shortcomings also in the right to defense, namely adequate opportunity to mount a defense, and effectiveness of legal representation. In the report of OSCE/ODIHR, it is also mentioned that there is a need to improve the quality of legal assistance. The new draft of the Law on Amendments of the Law on Advocates provides free legal assistance for a wider rage of people, but there is no clear and criteria for definition of insolvency.
[1] Armenia's ENP Implementation in 2010. Partnership for Open Society Perspective; November, 2010, p. 6
[2] Idib, p. 8
[3] OSCE/ODHIR Final Report on Trial Monitoring Project in Armenia (April 2008 - July 2009) Warsaw 8 March 2010, p. 7
[4] Idib p. 6
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