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On January 16 2018, the Open Society Foundations – Armenia together with the Justice Group organized a public discussion, Civil Society Remarks on the Draft Judicial and Criminal Codes. The Justice Group is an expert council established in 2015 within the frames of the Open Society Foundations – Armenia’s criminal justice program. It unites civil society representatives and lawyers with a mission to secure international standards in legal and judicial reforms, as well as provide citizen oversight of the reforms.

The discussion had two parts. In Part 1, the speeches and Q & A session concentrated on the question whether the draft Judicial Code addressed the existing problems in the judicial system. While Part 2, focused on the draft Criminal Code and its approach to the present problems in the area of criminal justice. The speakers, also the member of the Justice Group, were Hayk Alumyan, an attorney, Avetik Ishkhanyan, the president of Armenian Helsinki Committee, Davit Khachaturyan, Ph.D., an expert, Arthur Sakunts, the chairman of Helsinki Citizen’s Assembly-Vanadzor and Heriqnaz Tigranyan, legal adviser with Transparency International Anticorruption Center. Two guest speakers joined with their analysis, Roman Aharonyan, deputy director of the RA School of Advocates, and Emil Amirkhanyan, first deputy chairman of the RA Chamber of Advocates. Other invited speakers of the discussion were Artak Zeynalyan from Yelq fraction, National Assembly, Tigran Markosyan from the Center for Legislative Development and Legal Studies at the Ministry of Justice, Tigran Melkonyan, human rights defender and Hakob Hakobyan a representative of the Investigative Committee. Tatevik Khachatryan from the Open Society Foundations – Armenia moderated the discussion.

Larisa Minasyan, the executive director of the Open Society Foundations – Armenia, greeted the participants and attendees with an opening remark. She noted that as one of the upholders of human rights with a long-lasting experience of monitoring and law analysis, the foundation could not sidestep the major changes taking place in the judicial and criminal justice spheres in Armenia. The discussion, she mentioned, was significant as it provided a platform for civil society to raise their concerns and reflections on the expected reforms. As in Armenia, she continued, submitting suggestions to the online platform www.e-draft.am was the only way for the public to present their arguments and position regarding the changes.

Part 1 of the discussion evoked the independence and unbiased position of judges and the primacy of including these two aspects in judicial code. The speakers pointed out that the guarantees for independence of courts defined in the code were not sufficient, and there was a need for additional mechanisms to secure the independence of judges. They also noted that the new code would not provide mechanisms to appeal the disciplinary decisions of the Supreme Judicial Council—an essential procedure for the independence of the judicial system. Hayk Alumyan brought up the question that there was a high risk for the judges to be financially dependent on the banks in cases, where the latter were involved. He pointed out that banks brought up the vast majority of civil cases by suing their customers over financial disputes, while the number of lawsuits against banks by their customers remained minute. He consequently insisted that judges should also declare information on the amount and conditions of the credits borrowed from the banks.  Regarding the unbiased approach, the discussion also pointed out that although the code ensured the right to effective judicial protection, such protection could not be secured fully if NGOs were not vested with the right to apply to court for protection of public interest or right of other citizens (action popularis).

The second major point brought up in Part 1 of the discussion referred to the legality of judge’s authority to impose a fine of 100,000 AMD upon a lawyer in cases of ethical violations. This regulation, prescribed by the new code, would limit the independence of lawyers, at the same time contradicting the commitments under the European Convention on Human Rights. Reflecting on this issue, Davit Khachaturyan pointed out in his speech that severity of such punishment and its preventive function would turn the fine into a criminal sanction in the meaning of the ECHR. Another major issue about this sanction, as pointed out by the speaker, was that the court and the judge would establish this punishment, while at the same time being the injured party. In 2005, the European Court of Human Rights recognized such a solution as a violation of the Article 6 (ECHR judgment on the Kyprianou v. Cyprus case). Emil Amirkhanyan joined this argument by further questioning the need for such a punishment. He noted that there was not a public demand to incorporate this sanction, while any changes of this nature should be well-grounded to maintain a balance between the aim and the means of interference. As a representative of the RA Chamber of Advocates, he stated that they believed, this sanction would become a tool to restrain and pressure the lawyers.

Referring to the public demand and participation, Arthur Sakunts raised the issue of civil society participation in the formation and implementation of the judicial power. He cited several documents of the European Council, which stipulated that each country should secure a beneficial environment for the NGOs to participate in the development and improvement of the legal system. Whereas in Armenia, the NGOs did not get the opportunity to monitor the activities of the Supreme Judicial Council when forming the judicial power, nor did they participate in drafting the Judicial Code. Sakunts noted that the submission of suggestions to the online platform www.e-draft.am was a simple formality, because submitters never received reasonable justifications in cases of a refusal or acceptance of their suggestions. He pointed out that NGOs submitted the bulk of application to the RA Constitutional Court, thus, contributing to the development of the human rights protection mechanisms in the country. Any government, he emphasized, interested in such a development, should support these organizations and should increase the productivity of their role and participation.

The participation in drafting the Judicial Code and the submission of suggestions became the focal point of the Q & A session that followed the discussion of Part 1. Tigran Markosyan, representing the Center for Legislative Development and Legal Studies at the Ministry of Justice, was the addressee of these questions. He asserted that all suggestions presented to www.e-draft.am received answers without any exceptions and insisted that they did not receive any suggestions by the Justice Group on the mentioned website. While all present members of the group affirmed the submission of their comments and suggestions under the draft Judicial Code. Markosyan further expressed his disbelief that there were any country cases where NGOs participated in drafting the Judicial Code. Arthur Sakunts opposed this statement, explaining that the civil society could afford not doing oversight of the judicial drafting only in cases, when the state officials acted within the powers and limits set by the law. Whereas, the history and experience of the RA has shown that state officials have been violating the law and abusing their powers, thus, making the public oversight a necessity.

The discussion of Part 2 followed the Q & A session, bringing to the audience’s attention the issues of the draft Criminal Code. Among the controversial points of the draft, Davit Khachaturyan evoked the problem regarding the definition of torture. Though the draft Criminal Code defined the torture, it did not establish any criminal responsibilities for subjecting someone to cruel, inhuman or degrading treatment or punishment. He underscored that this problem would create obstacles for an effective examination of the cases and the restoration of the dignity of torture victims according to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Other pitfalls of the draft Criminal Code referred to the criminalization of corruption crimes and violations of the electoral rights, which discussed Heriqnaz Tigranyan. She pointed out that in the new draft code, the type and severity of the punishment established for the violations of the electoral rights were considerably mitigated compared with the existing code. This change, she noted, largely contradicted the responsibility and readiness of the State to reveal and prosecute the electoral violations. Tigranyan noted another drawback of the draft code, which referred to the prosecution of corruption.  She mentioned that the draft code enlisted certain crimes against public service interest but failed to classify them as corruption crimes. She reiterated that the new Criminal Code should define and establish the corruption crimes against public service interest.

The last point raised during this discussion was about another contradiction in the draft Criminal Code, the access to justice for the persons serving life imprisonment. Avetik Ishkhanyan presented his analysis and observation of the draft code focusing specifically on the age for the life sentence, which the draft Criminal Code has established above age 18. Ishkhanyan mentioned that during the discussions of the preliminary draft Criminal Code, the working team was determined to establish this punishment only if the offender was above the age of 21. He added that Eastern European countries had eliminated life imprisonment, while the countries which have maintained it, applied it only for the individuals above the age of 21 and used a psychological test to ensure that the individual has the maturity of a 21-year old adult person. Ishkhanyan was disappointed to find out that the working team had changed the age for the life imprisonment to 18 in the final draft of the code. He believed that this was a result of exerting pressure on the working team from other state bodies. When the Justice Group along with other NGOs submitted their suggestion to restore 21 as the age for the life imprisonment via www.e-draft.am, the response they received stated that the RA could not make such a change because of the war situation in the country. Ishkhanyan considered this an unclear and implausible response, because, establishing the age of the punishment had nothing to do with the situation of the country, and second, officially, Armenia has not declared a state of war. According to Ishkhanyan, the changing of the age was a political choice, because when the working group had changed the age from 21 to 18 in the Article 67 that directly stated about the life imprisonment, they had maintained 21 in the section about minors, notably, in the Article 107.

Roman Aharoyan joined with his analysis and criticisms of the draft Criminal Code. He particularly talked about the criminalisation of the attorneys’ certain actions in the draft, underscoring that these actions do not present any risks for public safety to be introduced in the code. He further mentioned that these regulations were questionable from the perspective of the object of protection, lawfulness of the goal and proportionality of means. The aim of these sanctions, Aharoyan concluded, would be keeping the attorneys under control rather than solving criminal issues.

The Q & A session that followed the discussion of mentioned issues with the draft Criminal Code. The participants of the discussion and the panelists inquired about Ombudsman’s position on the discussed draft codes. The representative of the Human Rights Defender Office explained that the Ombudsman had sent his conclusions regarding the draft Judicial Code and draft Criminal Code to corresponding state bodies, as for the supplementary details, the representative invited the audience to contact their media center or to follow their activities on their website (www.ombuds.am). The follow-up questions and reactions of the audience showed that in cases of major decisions and changes that directly referred to human rights, the audience expected the Ombudsman’s office to state its position publicly and to make its suggestions or oppositions to the legislative and judiciary changes available to the public.

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