THE REFORM OF THE JUDICIAL LEGAL SYSTEM AND THE OBJECTIVE OF THE PROTECTION OF HUMAN RIGHTS

A. B. Giulumian,

member of the Constitutional Court

Dear participants of the seminar and visitors.

The reform of judicial legal system is an expediency in all former Soviet and Communist countries, that have renounce the totalitarian regime and adopted the principles of human rights protection.

The former legal systems of the New Independent States are very little different from one another. So that today the reform of these systems raises identical issues in the said states. That does not mean that each of those states has its own specific features. For our Republic, the following features are to be highlighted.

  1. The current system is subject to complete change, it is necessary to establish new structures and to completely change the entire legislative domain, to change the old structures.

  1. The transitional statements of the Constitution provide limited deadlines for adopting the reforms. Violation of the established deadlines will be regarded as violation of the Constitution.

  1. A reform cannot be accomplished autonomously, with no international cooperation, no technical or advisory assistance.

Privatization of land initialized the economic reforms in Armenia. The primacy of a single type of property, viz., the public property, had been revised, and the state guaranteed the free development and an equal legal protection for all proprietary rights thus creating a basis for developing the relationships of market economy.

Most significative for political reform was the adoption of the new Constitution. There had already been set up complete constitutionally formulated state structures: President of the Republic, National Assembly, the Supervisory Chamber of the National Assembly, the Government, state bodies of the regional governments and local management, Constitutional Court, the Council of Justice. The latter two institutes are completely novel structures for the legal system, those however being only the first steps in structuring the judicial authority.

The judicial legal reform in Armenia is a constitutional requirement. The basics and principles of this reform are registered by the Constitution. However, there was no integral program of reform to be adopted immediately following the reform, so that much time had been wasted. There is much focus today on the judicial legal reform. A presidential decree (Article 49 and 55 item 6 of the Constitution) established a state committee comprising the representatives of the three branches of state authority.

A special state program was developed and approved. The program indicated the principal objective of the reform as a creation of a judicial system running independently, having its distinct place and purpose, providing reliable guarantees for the defense of human rights and the development of democratic relationships.

Todayís Armenia is living through a period with the three types of law actually contradicting one another: the Soviet laws, the laws adopted before the Constitution and those adopted after the Constitution. There is a need to establish a new legislation securing the implementation of human rights and freedoms in complete observance of the relevant international standards. With regard to this there is another problem, the one of legality. Regretfully, our capabilities in defending human rights are very limited when implementing the constitutional control. It is not excluded hereby that the constitutional human rights can be violated by law itself or another legal act. No one can indicate such a violation more efficiently that the citizen himself who intends to implement his right. Next this violation will go to the general court which administers the law. Neither the former nor the latter however have the right to appeal to the constitutional court. It seems that the reform consists not only in reforming the old system. It is a dynamic process, so that new structures, too, can be reformed by extending the specific frame marking off the personís right to appeal to the constitutional court. There is no need to wait for the adoption and application of the legal act for the violation of human rights before starting the examination. Everything possible should done so that those occurrences become very scarce. We have no provision for the preliminary control of the legislative drafts, however, it is possible to create the structures intended to drop the legal acts adopted in violation of human rights. It is possible, e.g. to establish a national center for the defense of human rights that would issue its findings prior to a specific act being signed by the President of the Republic. One option is the Institute of Ombudsman. Structures of this type are particularly important at the time of reforms.

It is indisputable that in every country the situation with human rights defense is contingent upon the level of guarantee for the defense of human rights and freedoms using the current laws of the specific state. With all however fine laws adopted, they would be of no value and would remain an illusion, if adopted in a non-legal state that would secure no rule of law. Article 1 of the RA Constitution declares an independent democratic social legal state, while Article 6 states that Republic of Armenia guarantees the rule of law.

This type of statements being registered in the Basic Law is certainly not tantamount to the creation of a legal state and securing the rule of law. To this end one should radically change the institutional structures implementing the human rights defense and the judicial structure in the first place.

Currently operating in Armenia are the old courts that had worked in the absence of private ownership, using the principles of the primacy of state-owned property. The entity that used to resolve economic disputes was the executive authority, the state-operated arbitration under the government that is still operational today.

Most civil legal disputes used to be resolved in an extra-judicial procedure. Their setting was so limited that there is a current viewpoint today that the general judges will just not be able to resolve the disputes related to the market economy relationships. Oftentimes the court decisions had not been carried out for years, since the warrant officers who had to put them into effect, were not empowered to do so. It is being quite correctly suggested today to establish special structures, properly empowered, that would enforce the decisions of the court.

The courts dealing with criminal cases mainly used to perform the punitive function. The question on criminal liability was essentially resolved in the preliminary investigation.

All that had resulted in the people becoming convinced that the defense of their rights had to be sought in the bodied of executive authority rather than in courts.

It is not accidental that a research conducted by the Constitutional Court has shown that 60 percent of the citizensí applications are addressed to the irrelevant institutions with wrongly premised competencies. Moreover, there have been applications to executive and legislative entities requesting to assume supervision of a court hearing. It follows that it is necessary to strengthen the judiciary authority. The judiciary authority is strong when its decisions are being put into effect. A court decision is to be regarded and carried out as a law. The political authority should not criticize a court decision, which is regrettably still the case today. That should not be perceived as manifestation of vested interests, since a weakened judiciary authority will inevitably result in the negative practices within the society. Furthermore, the public attitude should be modified, so as to strengthen the public awareness of the courtís role in the defense of human rights.

Article 38 of the Constitution states that everyone has the right to the judiciary defense of the rights and freedoms granted by the Law and the Constitution. This is essentially an expression of the international principle of the full-fledged judicial defense of human and social rights.

To implement an effective judicial defense, it is necessary:

1. to secure judicial independence:

The need for an independent and impartial court is registered in Article 39 of the Constitution stating the right of the person for a judicial examination of his case in this specific type of court. What is necessary to provide judicial independence:

  1. Judicial defense has to be made publicly accessible. It is completely undesirable to establish special judiciary structures. E.g., it is impossible to provide a precise delimitation between the economic and civil disputes. With this type of court division it is not excluded that the same case be examined in different courts, thus delaying the decision.

  1. It is difficult to imagine the defense of human rights with no right to revise a court decision. For this, it is insufficient to establish the revision court, it is necessary to create the real capabilities for appealing the court decisions. These capabilities can be provided by establishing the institute of licensed defense lawyers which is envisaged by the Constitution but inexistent to date.

  1. Nonetheless important for the implementation of human rights is to make legal assistance accessible to everyone.

It is only after all those issues have been resolved that we shall say that the human rights in this country have a reliable protection.