The central event of this follow-up support mission was
a two day "round table" discussion (20-21 July)
organised by Avangard, bringing together lawyers,
magistrates and academics to hear and debate two
legal matters that are typical of current violations in the
present system. The one was a civil matter and the
other criminal, and both were chosen from among the
fifteen or so cases brought before the courts since the
beginning of the "legal clinics" programme.
Ill treatment and wrongful detention: the Dangoyants
affair. Ruben Sahakian, a criminal lawyer at the Court of
Appeal (there are three in all) and a respected figure in
Armenia, presented the Dangoyants affair: the story of
a young man of 25 who, following 2 years of detention
awaiting trial as well experiencing multiple procedural
irregularities, was sentenced to 8 years imprisonment
for allegedly having murdered a compatriot on Polish
territory.
The whole affair was set in motion by a request for
information (nothing more; no extradition treaty exists
between the two countries) made by the Polish
authorities to their Armenian counterparts, following the
discovery of the body of a man identified as a certain
Petrossian.
The Armenian authorities arrested three men, among
them Dagoyants, although there was not the slightest
evidence against them. They beat and tortured them;
the first was freed after five days, the second after three
weeks, but Dagoyants, who suffered very badly under
this treatment, "confessed" on the seventeenth day -
seventeen days spent in a cell one meter square where
he could not even lie down properly. He was never told
of his rights and was refused access to a lawyer. At the
end of 1996 he was beaten on three consecutive days
and suspended by his wrists while his "interrogators" hit
his fingers. Two months later a forensic doctor noted the
existence of visible wounds on his hands and wrists and
concluded that they were caused by his weak
constitution.
The most remarkable element of the "confession" is
that at the time when it was made, the Polish authorities
had still not forwarded the details of Petrossian’s death
in Poland; a real "made-to-measure" confession.
The charge was finally pronounced two years later. So it
is hardly surprising that a long series of procedural
violations followed: a use of indirect evidence,
uncertified copies of recorded telephone conversations,
refusal to hear witnesses for the defence, etc.
Barrister Sahakian believes that this verdict (8 years
imprisonment, being the minimum legal provision for
premeditated murder) revealed the blindness of the
authorities. It also backs up his own theory nobody
dared challenge the verdicts because the investigating
went on to become the state prosecutor
The affair was brought to the attention of the United
Nations Committee Against Torture and the Human
Rights Commission. During the round table and the work
sessions which followed, the FIDH and Mr. Sahakian
cited 15 major violations of the European Convention of
Human Rights and these only covered the period
between arrest and indictment. Mr. Sahakian made
skilful use of these facts to win the case in the Court of
Appeal (see insert below).
Concrete results. Following the conclusion of the round
table discussion, two significant facts should be
emphasised:
Firstly, in the Dagoyants affair, on 11th October the
Court of Appeal accepted en bloc the 15 basic
objections presented by Mr Sahakian: the matter was
therefore referred to the Assize Court for a second
judgement;
– Secondly, the Chairpersons of the three bars planned
to meet at the end of October to decide on the coordination
, and even the fusion of the three Colleges,
following the preliminary tripartite meetings initiated by
Avangard.
Trading of favour and a void in the legislature.
The civil
case which was presented by a young lawyer, Arthur
Grigorian, is very different, but equally revealing of the
fragile state of Human Rights in legal practice. It
involved real estate law. Yuri Vardanian, a deputy in the
Parliamentary Assembly, was suspected of using his
rank and contacts to persuade the Supreme Court to
invalidate a notarial deed of gift that was drawn up in
1933. In terms of the deed the ownership of a block of
flats belonging to his forebears was transferred to a
public body (in this type of case, it is always difficult to
produce tangible proof). However, in the interim, and
particularly after the advent of Armenian independence
in 1991, the public body privatised the flats, and
ownership was transferred to the occupants.
Despite several legal failures, Mr. Vardanian
managed to persuade the High Court, not only to
invalidate the deed of 1933, but also to recognise him
as the sole legal proprietor. By making this decision, the
High Court prevented the eight occupants from
exercising their legal rights of ownership. In not taking
account of the rights of all the parties (nobody took into
account the title deeds obtained by the eight occupants
following privatisation), the High Court acted in violation
of article 26 of the Armenian Constitution, which
stipulates that only a legal procedure may deprive a
citizen of ownership.
In these circumstances it is difficult to imagine that Mr.
Vardanian did not use the influence of his electoral
mandate and parliamentary
connections to win the case - a
point which Grigorian (the
lawyer) and the members of
Avangard did not hesitate to
take up.
Moreover the round table
discussion concluded that the
legislature should rapidly adopt
measures to deal with this type
of case.
The judicial decision in this civil
case, like the one in the
criminal case discussed above,
seems to take more account of
the personality of the actors
than the application of rigorous and non-arbitrary
procedures.
Legacies from the past and the scale of the task
ahead. Generally the debates were of a very high
standard even if it is regrettable that so few State
representatives participated. However, those who took
the trouble to accept the invitation, (a magistrate from
the Constitutional Court and the Chair of the Civil
Chamber of the Court of Appeal) made a brave and
essential contribution to the success of the
discussions, both through their seriousness and the
counter-arguments that they introduced.
Their interventions illustrate that where confronted with
cases involving Human Rights, their reflex is one of
sovereignty and authoritarianism. The same can be said
of their response to international conventions and
treaties that relate to Human Rights and which take
precedence over national law because they have been
ratified by the Armenian Republic. The legacy of the past
and the symbolism of the right of the all-powerful State
do not sit comfortably with the legislative reforms and
the obligations of transparency and justice inherent in
international norms.
It also emerged from the round table discussion and the
debate which followed, that the training programmes
organised by various operators aimed at raising
awareness of Human Rights, did not cover one group of
principal actors, the police, although they are essential
first link in the legal chain. However, the representative
from the Ministry of the Interior expressed a wish that
the FIDH might help in establishing an appropriate
education programme.
This event has probably given rise to much soulsearching
in the legal profession (the three bars which
were created in Armenia in 1998, following the adoption
of a new law about the legal profession in July of that
year). The representatives of the three colleges present
during the two days realised
the complexity and scope of
the battle to be waged against
the rampant conservatism of
the apparatus of State. They
also realised the need for
establishing of a more
democratic practice in the
machinery of the judicial
system, particularly in the
relationship between
magistrates and lawyers.
In spite of the advice given by
the FIDH at the close of an
earlier mission - before the
adoption of the new law - the
Justice Department decided upon a system based on
competition between the bars. The result was a divided
profession, with the three bars quarrelling over their
members and respective fields of influence, thus
exposing their flank to State domination. What is more,
the quarrelling has opened the door to financial
manipulation by certain members and donors, thus
compromising the independence of the profession.
Today Avangard is at the centre of this series of
changes, demonstrating its determination to accelerate
the establishment of the legislative machinery
necessary to enscare international standards become
more than mere treaties and that good practice
becoming the norm. To this end, it is willing to adopt
models and methods from elsewhere, adapting them
where necessary.
Philippe Kalfayan
Michaël Mc Colgan