Advocate Vahe Grigoryan About the Problems of Independence of the Armenian Bar
The statement of advocate Vahe Grigoryan about the problems of independence of the Armenian Bar made in the framework of the 09.03.2018 Conference on the Current Challenges and Opportunities of the Bars and Law Societies of the Council of Europe Member States
Ladies and Gentlemen,
I would like to skip the issues relating to the organisational aspects of today’s event, including the strange role of the President of the Bar Chamber in them to save time and to focus on what is most important to us.
I will start by thanking the experts invited to this event by the co-organisers for their readiness to share their interesting and informative opinions with us.
Given the fact that this is the first event in Yerevan with the participation of the interested organisations, including the ‘opposition advocates’ (please note that this label was given to us by the President of the Chamber and not me or any other colleague of mine), I would like to draw the attention of the present to a number of problems the Armenian Bar faces today.
Around 30 advocates have already applied to the Council of Bars and Law Societies of Europe (CCBE) expressing their conerns about a number of serious problems the Bar faces today and we look forward to hearing the positions of this and a number of other international bodies on solutions to these problems.
We are of the position that the President and the Board of the Armenian Bar Chamber have in fact transformed this professional self-regulated body into an instrument in the hands of the Armenian Government with a view to subjecting it to a type of oversight, which is contrary to the standards enshrined in our Constitution and the relevant national and international instruments for regulation of the legal profession.
This process became visible in 2014 and having partial or complete similarities with the processes in Azerbaijan and Ukraine, has transformed into a targeted and consistent strategy in Armenia.
This policy of the political authorities implemented through the President and the Board of the Armenian Bar Chamber forced around 30 advocates to make a protest against the actions of the President of the Bar Chamber and his administration, demanding termination of the indecent practices of the leadership and administration of the RA Bar Chamber, considering them contrary to the spirit of our profession and containing threats of irreparable harm to our professional reputation. No steps have been taken following this statement and no one has been held liable for the aforementioned practices.
The Board elected in 2016 from the same list reinforced the practice of making the Chamber even more controllable by the Government on account of practices to subjugate ‘disobedient’ advocates. To this effect and with a view to effectively ‘silencing’ them the President of the Bar Chamber has regularly resorted to the institution of disciplinary proceedings against them and the conduct of such disciplinary proceedings in blatant violation of even minimum procedural guarantees.
These disciplinary proceedings were normally carried out overwhelmingly against advocates involved in criminal cases ‘sensitive’ to the Government and the opponents of the Chamber in violation of minimum procedural guarantees:
The Board of the Chamber in charge of the examination of disciplinary cases against advocates has consistently ignored the principle of independence and impartiality as a tribunal for disciplinary proceedings. The examination of disciplinary cases by the Chamber Board is done with the participation of Board members who, being part of the Chamber administration, or subordinates to the President of the Chamber, are fully dependent on the latter or have participated in the preparation of a complaint under examination in the same proceedings;
When instituting disciplinary proceedings, the President of the Chamber fails to base his decisions on any legal standard. Any complaint against an advocate opposing the Government or the President of the Chamber or the Board thereof is sufficient for instituting disciplinary proceedings against him/her;
The President of the Chamber consistently refuses to disclose his decisions on instituting or refusing to institute disciplinary proceedings despite numerous requests from advocates in this regard. This makes impossible for advocates to conduct a study or analysis of the clarity and certainty of the standards applied in similar situations. We strongly believe that the reason not to disclose those decisions is the concern of the President of the Chamber as well as that of the Government that any analysis of the statistics and standards underlying them will demonstrate that these disciplinary proceedings are instituted in a discriminatory manner and overwhelmingly against the advocates involved in politically sensitive cases or the ‘oppositional’ advocates, whereas no proceedings are instituted on complaints against the President of the Chamber, his supporters or advocates who are under the patronage of the Government;
In some cases, the President of the Chamber and the Board members take direct part in drafting and submitting complaints against advocates, which is not possible to detect in all cases. However, in cases when these facts are disclosed, this never entails any form of liability for these members;
The sessions for the examination of these disciplinary cases are held in blatant violation of the rules of conduct and ethics of advocates accompanied by a biased and unacceptable behaviour of certain Board members;
When examining the disciplinary cases no importance is attached to the maintenance of the confidentiality and privilege of advocate-client relationship, and in many cases, interference with such relationship and violation of the protection of the confidentiality rule is done by the President and Board members of the Chamber;
To this date, neither the Board nor the President of the Chamber have publicised any guidance or commentaries on the standards and principles for instituting disciplinary proceedings in general. Taking account of the fact that the Chamber refuses to provide the decisions of its President on instituting and refusing to institute disciplinary proceedings, it is obvious that by manner of artificially creating legal uncertainty on this matter, both the President and the Board of the Chamber apply the rules enshrined in the Code of Conduct for Advocates in an arbitrary manner, and this is even more obvious in case of advocates involved in politically sensitive trials and the ‘opposition’ advocates;
Certain Board members examining disciplinary cases lack basic knowledge of the law (to say nothing of the absence of the relevant practice whatsoever) of the relevant field of law, which is a subject matter of examination by the disciplinary authority. Any objective observer will, therefore, conclude that the decision is already adopted while the disciplinary proceedings are artificially pursued formal process of creating visibility of legitimacy;
The foreseeability of the composition of the Board is never maintained in disciplinary proceedings and the respondent advocates are never notified of who of the Board members will take part in the proceedings in his/her case.
Apart from launching a campaign of persecution against advocates involved in sensitive political trials which is a serious burden for any advocate in addition to his/her regular excessive workload (for example, the number of disciplinary cases against one of these advocates is more than two dozens at a time, leaving alone the appeal procedures against some of these decisions pending in the courts), such persecution is effectuated by the President of the Bar Chamber and his administration with direct patronage of the Government in even more dangerous forms.
In particular, the use of physical violence has become an instrument of pressure against advocates. Even after the advocates who have become victims of explicit violence applied to the law enforcement bodies, the President of the Chamber and the majority of his administration continue to publicly support the persons who have exerted violence on them. Moreover, in one particular instance, the attack on an advocate’s office was perpetrated by the Principal of the Bar School, the Adviser to the President of the Chamber and another staff member of the Chamber. All of these individuals continue to hold their positions even after the incident, which is regarded by the broader public as an act of public encouragement and endorsement by the President of the Chamber of their actions. After such attacks not only are the advocates who have become victims unable to defend their rights via the channel of criminal justice but become defendants in such a case. By these means, the authorities are trying to make them withdraw their complaints initially lodged against the Chamber officials.
The practice of publicly insulting advocates and launching campaigns against them continues to be among the weaponry of the Chamber to which its President resorts to in many cases via his relatives recruited by him as staff of the Chamber.
Of special importance is the fact that once the Chamber bodies ignore any international and domestic standards whatsoever regarding the code of professional ethics of advocates in the course of disciplinary proceedings, this practice is effectively continued by the Armenian courts. We are of a firm belief that the Armenian Government has issued clear assignments to the courts on leaving decisions against the advocates who are ‘undesirable’ by the Chamber unchanged.
The aforesaid has been confirmed by very concrete cases and the decision taken in those cases. The Chamber of Advocates obstructs the finalisation of the analysis by concealing the information, which is of great public importance.
This said, I do not mean to insist that all of the aforesaid has been organised and implemented by the decision of the President and certain members of the Board of the Chamber. I am far from thinking that the Chamber leadership has discretion in the choice of such a policy. This is most probably the manifestation of their narrow margin of discretion within the frames of the policy predetermined by the executive of Armenia. In other words, they are not the authors of these decisions. The only decision that they have made is the decision to become an instrument of control in the hands of the political authorities. The rest is a predictable process taking place within the frames of the regularities of the advancement of totalitarianism with all very predictable consequences.
Any statistics concerning the activities of the Bar Chamber reminds of North Korea.
The importance of these and many other issues has been underlined by our foreign colleagues, 39 human rights organisations from 20 States, members of the Civic Solidarity Platform (CSP), who noted in their joint statement of 9 August 2017 their concerns regarding the practice of the Chamber of exerting pressure on advocates.
These problems have endangered the profession of lawyer in Armenia calling for expedient solutions to them at both domestic and international levels.
We strongly believe that at both regional and international levels the road to finding solutions to these problems lies in our active participation in the process of drafting of the European Convention on the Profession of Lawyer.
In this regard we welcome the efforts of the PACE Committee on Legal Affairs and Human Rights and the CCBE in the area of effectuating the idea of this Convention. The appointed rapporteur has paid special attention to the atmosphere of persecutions and violence against lawyers in Turkey, Azerbaijan, Ukraine and Russia.
The problems related to the situation of the profession of lawyer in Armenia have been collected and submitted to the relevant rapporteur by the CCBE and this also served as yet another basis for the above recommendation.
Therefore, we believe that the aim of the scrupulous examination and study of the current situation at the Bar Chamber with a view to drafting the above Convention should be the recognition of the fact that any unlawful interference with the profession of lawyer and the professional freedoms of lawyer must be condemned and stressed not only in the light of such persecutions by public authorities but also by the so-called self-regulated bodies.
In this latter case, the case of interference with the profession of lawyer by the self-regulatory body the Armenian practice is a classical – if not a textbook example of how dangerous such interference could be for the profession of lawyer, on the one hand, and even more dangerous for the professional independence and freedom of lawyer, on the other in totalitarian states or states with such propensity where this interference is made via the self-regulatory body for the sake of such justification on the part of the state.
Another aspect, which I would like to draw the attention of the present to is the fact that when we were founding the Bar Chamber we naively thought that a single organisation or the organisational monopoly would unequivocally contribute to the protection of the independence and freedom of our profession by means of unification of all lawyers’ potential. I have to admit that we were very naïve in this intention of ours since back in 2005 we believed that it was possible in a state with a totalitarian propensity (authoritarian now) to have a single organisation where our love of democracy and the spirit of our professional freedom will allow us to maintain our professional freedom by applying democratic principles. It is regrettable that by advocating the monopoly of the organisation and by contributing to its making we placed ourselves – the representatives of the freest profession - in an inescapable quagmire. By conferring on this monopolous structure such wide powers as regulation of the issues of legal ethics, the lawyers’ training and licencing we ended up in a situation in which all that the political authorities had to do was put the leadership of the organisation into their pockets in order to have unlimited control over the profession itself. A vivid manifestation of the aforesaid are a number of past events held according to the standards of the North Korea.
The reason for such miscalculation of ours was the success of such a model in other states with sounder traditions of justice. However, we overlooked the fact that the success of the model was largely conditioned by the type of environment in which it functioned. And on the contrary, the model which was the least preferable in a democratic society and environment could be the one envisaging the best protection or would prove the least controlled by the public authorities. I refer to the model in which the organisation does not have a monopoly over the profession. Moreover, the absence of a monopoly creates competition between self-regulatory organisations of lawyers, thereby ensuring the best environment for the protection of the profession of lawyer with the State having to face the impossibility or at least serious difficulties in establishing control over self-regulatory organisations of lawyers. It is this kind of hurdles or difficulties for the state authorities that provide the necessary oxygen for our profession in an environment immersed in totalitarianism and for the regressive ideology feeding it. Therefore, any lawyer who prefers the freedom of his/her profession to slavish conformism will not have to and must not become part of an organisation, the top leadership of which is a source of regressive (and not conservative) ideology and propaganda (including the propaganda of explicit homophobic and hate speech for populist considerations) where the decisions and opinions pronounced by them become a subject of rightful mockery by judges, advocates, prosecutors, investigators and journalists.
I would also like to note that at present the Ministry of Justice has launched a fully non-transparent process of amending the Law on the Bar or rather drafting a new law on the bar. I am not surprised that no essential role is conferred on the Armenian Bar Chamber in this process.
We have heard words of encouragement and offers of cooperation by a number of foreign bar organisations, which silently but attentively watch the sad stories happening to the Armenian bar.
We will take a most active part in all consultations and expert examinations of the draft to the extent it is possible in the light of the obstacles created by the Ministry of Justice and the Bar Chamber. We also anticipate the support of the co-organisers within their mandate in helping us to voice our positions and viewpoints and in that they are taken into account.
These viewpoints have been discussed and agreed with around 30 lawyers, which are from different age groups. Some of them have gone through prosecutions, detentions, years of surveillance and other continuous violations of their fundamental rights in the course of their professional activity and especially in the protection of their professional freedom and the interests of their clients.
And WE all, lawyers with very different political and social viewpoints and preferences are unanimous in the opinion that the profession of a lawyer is endangered in Armenia and that any delay in finding a solution to this may lead to a situation similar to the one in Azerbaijan and Turkey if we are not already in such a situation here in Armenia.
The lawyers who have signed this statement: