Five years have shown thatArmenia’s three-tier justice system is not an efficient means of providing swift, complete justice, and that radical changes must be made in the court system. At a minimum, power must be redistributed among the tiers.

A look back

Armeniaannounced its shift to a three-tier system of justice in the Constitution of July 5, 1995, article 92 of which states, “ The courts of general jurisdiction in theRepublicofArmeniaare the Courts of First Instance, Courts of Appeals, and Courts of Cassation.” The article also envisions other courts, such as economic and military courts, butArmeniahas just started to take steps in this direction. The law on the three-tier system of courts was adopted in July 1998, and has been in use since January 1999, but the creation of specialized courts began only in October 2001, with the establishment of theEconomic Court. Attempts are also underway to establish administrative courts to resolve disputes between citizens and state bodies. 

A Pear-Shaped Court System

The three-tier court system includes 17 Courts of First Instance, 10 in the regions and 7 inYerevan, and Courts of Appeals and Cassation inYerevan.

Experts compare the hierarchy of authority in the court system to a pear, noting that the stem end represents the Court of Cassation, and the thickest and most juicy part the Courts of First Instance, for they are endowed with near total judicial authority. These courts hear all civil, criminal, military and administrative cases (until recently they heard economic cases as well), all pre-trial issues such as arraignment, search warrants, and restriction of privacy rights in telephone and other correspondence.

The Courts of Appeal essentially re-try cases decided the Courts of First Instance. Though they are not restricted by the facts of an appeal and can review the case in full, they are restricted in overturning the decisions of the Courts of First Instance in that they cannot correct legal errors that the court permitted.

The Court of Cassation court reviews cases decided by other courts, but only within the limits of the contents of each cassation appeal. Thus, it has even less authority than the Court of Appeals court. Moreover, even when legal mistakes are discovered during an appeal, the Court of Cassation cannot alter the rulings of the other two courts. 

Justice is impaired

Experts believe that the unequal distribution of power in the court system prevents the full exercise of justice. For example, Article 397 of the Criminal Code forbids the Court of Appeals to increase a sentence handed down by the Court of First Instance, even when the sentence is less than stipulated by the law. This article has been made use of a number of times, as in the case against the former Commander of Internal Forces of the Internal Affairs Department, Vahan Haroutiunian, and several of his subordinates. The court sentenced Haroutunian to six years for several murders and assassination attempts, for which he claims he received instructions from former Internal Minister Vano Siradeghian, while the men who followed Haroutunian’s orders received far harsher sentences, including death. This was no case of mercy, merely a miscarriage of justice, which will reach the Court of Appeals only at the instigation of the defendant.

This implies legal grounds for a broad range of formal relations between the plaintiff and the defendant, for example, bribery, since if the defendant agrees with the plaintiff regarding payment, the court will have to accept it, although it is against the law, because the court cannot call for a harsher punishment than the prosecutor seeks. Even the Court of Cassation lacks the power to change that, since it is in fact deprived of the right to do justice. True, Article 21 of the RA Law on the Creation of Courts endows the Court of Cassation with the power to review the enacted decisions and rulings of the Courts of First Instance and Appeals and the non-enacted decisions and rulings of the Court of Appeals on criminal and military cases. But those powers of review can be deemed useless, for if some legal mistake is discovered in the ruling, the Court of Court cannot correct it; it can simply direct the case back to the same court for preliminary review or retrial. In fact, the acting law does not forbid theCassation Courtto send the case to the Court of First Instance for retrial. This means that the Court of First Instance has the power of retraction as well, although a special court - the Court of Appeals - has been established for that purpose. This overlapping of the legal process and restriction of the authority vested in the superior courts suggests a serious impairment of justice inArmenia.

Power must be redistributed

For the justice system to function effectively, further amendments, particularly redistribution or clarification of the powers vested in the courts according to the legal hierarchy, has become the issue of the day. Otherwise, the existence of the Court of Appeals in particular is irrelevant, regardless of the achievements of the introduction of the three-tier court system in terms of providing defendants with the right of appeal. Appealing cannot be an end in and of itself-- it must have material results. Appeals judges are aware of this, too. They suggest empowering theAppeals Courtwith exclusive rights for appeals cases, and moreover, freeing this court from the restriction of working only within the framework of the defendant’s appeal. That is to say, in the name of justice the court should be allowed to correct juridical mistakes, of which there are many. Research shows that during the appeals process serious juridical mistakes are discovered in 50% of the rulings of the Courts of First Instance. Today judges on the Court of Cassation also voice concern regarding the need to revise and continue legal and juridical reforms. For instance, the Chair of theCassation Court, Henrik Danielian, remembers old Soviet Supreme Court practices with envy, writing in one article, “The Supreme Court included all juridical processes and was presented as first instance, cassation, oversight and even review court.”

The Court of Cassation would have the same powers today, if years ago, as they frantically tried to wipe out the past, the state bodies ofArmenia, including representatives of the judiciary, had not eliminated the rational elements as well, and this could have contributed to a smooth and efficient transition in the system. And now they wouldn’t be been compelled to look for ways to dig up the corpse. At least oversight and review powers should be left to the Court of Cassation, otherwise it has no stature as a superior juridical body.

The past should not be forgotten

The lack of a body authorized to interpret and clarify problematic issues of the acting law is another thing that hinders the operation of the three-tier court system. It was again the Supreme Court that performed this function in the past. Its interpretations were mandatory and thus, they guaranteed the common application of the law by all the courts. However, we do not have such a body now, and the Court of Cassation is trying to fill the gap. Unfortunately its interpretations are only of an advisory character and do not require mandatory compliance. As a result, voluntary interpretation and diverse application of the same legal norm have become constant attributes of our justice system.

Currently, another permanent companion of the system is violation of the provision of conducting hearings in due time and without delay, especially if the case is related to crimes committed or organized by or against high-ranking officials. One such recent case is that of October 27, 1999, the hearing of which began on February 15, 2001in the Center and Nork-Marash communities Courts of First Instance. It is difficult to predict when it will be concluded, since it is still in the phase of preliminary testimony by witnesses. TheAppeals Courtstill lies ahead, and it is not easy to guess how many years it will take to review the case.

This state of affairs may prove that the practice of the Soviet courts of assigning especially important cases directly to the Supreme Court rather than to regional courts was justified.

This is why experts suggest using the old practice of assigning cases related to special subjects not to the Courts of First Instance but immediately to the Appeals Courts, after first defining by law cases relating to special subjects to avoid future voluntary interpretation or application of the term.

The Judiciary is a supplement to the executive

The ongoing judicial reforms and corresponding changes in the acting law will have no fundamental effect on the quality of applied justice unless parallel constitutional changes are adopted and the format of judicial-executive relations is changed. The freedom of the judiciary, and consequently the objectivity of the judicial system, is endangered by the Constitution itself, according to which the court system inArmeniais not free but is a supplement to the executive branch. According to Article 94 of the RA Constitution, the president of the republic is the guarantor of judicial independence, and it is he who heads the Judicial Council. The minister of justice and the chief prosecutor are the vice-chairmen of the council. In fact, the Judicial Council is fully controlled by the president of the republic. And according to Article 95, the annual lists regarding judges’ professional aptitude and promotion are presented for the president’s consideration upon suggestions made by the justice minister. This speaks for itself about the level of judicial independence inArmenia.

Sona Trouzian