Wednesday, 08 October 2003

THE FORGOTTEN PILLAR OF THE RULE OF LAW IN ARMENIA

Published in Analytical Articles

By Claude Zullo (10/8/2003 issue of the CACI Analyst)

BACKGROUND: With the threat of sanctions from the Council of Europe (COE) looming after its controversial elections, Armenia’s government managed to stave off action by the international body by ratifying Protocol Six of the European Convention on Human Rights, which unconditionally bans capital punishment in peacetime. The COE called the move an “important step,” but also called on the government to implement other measures, including strengthening its judiciary. Without question, an independent judiciary is a cornerstone of democracy and the rule of law; however, in mature democracies, lawyers play an equally important role by defending fundamental rights and freedoms of clients vis-à-vis the state.
BACKGROUND: With the threat of sanctions from the Council of Europe (COE) looming after its controversial elections, Armenia’s government managed to stave off action by the international body by ratifying Protocol Six of the European Convention on Human Rights, which unconditionally bans capital punishment in peacetime. The COE called the move an “important step,” but also called on the government to implement other measures, including strengthening its judiciary. Without question, an independent judiciary is a cornerstone of democracy and the rule of law; however, in mature democracies, lawyers play an equally important role by defending fundamental rights and freedoms of clients vis-à-vis the state. It is yet to be seen if Armenia’s soon-to-be-introduced Draft Law on Advocacy and Advocate Activity will include provisions to strengthen the country’s advocates (those lawyers who are able to represent clients in criminal cases) independence and effectiveness. Since the demise of the Soviet Union, Armenia has attempted to reform the profession of advocates several times. In 1998, the current Law on Advocate Activity was passed, which brought the profession in line with internationally recognized standards, but which left it fragmented, with lax professional standards, and to some degree beholden to the Ministry of Justice. For example, no licensing exams for advocates have taken place since January 2002. Moreover, because criminal investigators approve the number of hours an advocate can bill for a client’s defense in government-funded legal aid cases, the incentives for the latter is to act as a less-than-forceful representative for the client. Finally, Armenia’s legal culture, particularly in the field of criminal law, is still heavily influenced by Soviet-era thinking that puts lawyers at the bottom of a legal hierarchy that remains dominated by the procuracy. In order to increase public confidence in and the independence of the legal profession, the then three existing advocates unions drafted a new law in September 2001. Among other things, the draft law would have required advocates to be licensed in order to practice in both civil and criminal courts, would have mandated the creation of a unified bar association, and would have moved licensing authority from the Ministry of Justice to a proposed unified advocate association.

IMPLICATIONS: Although the COE found the draft law to be in compliance with the Council’s standards, it was never introduced into parliament. Instead, in late 2002, the Ministry of Justice began developing a new draft law that may be introduced into parliament in fall 2003. While the latest draft contains a number of improvements over prior MOJ drafts, this latest draft still contains some questionable provisions. For example, under Article 7, the Union of Advocates of the Republic of Armenia (UARA), which is closely linked to the government, would hold a monopoly on state-funded legal aid. This could provide a back-door mechanism for the government to exert influence in the legal system and for continued corruption in criminal cases, which are viewed as the most lucrative cases (many observers report that defendants are often asked to buy their freedom or a lesser sentence). Article 14 of the proposed law calls for qualification exams to have both a written component and an oral interview. The latter aspect is the most troubling, in that, as with judicial examinations, non-transparent interviews are seen as an opportunity for corruption. A “passing” grade could be given to the highest bidder. In a similar vein, representatives from the UARA would dominate a proposed qualification commission. Again, given this union’s links to the government, this may present an opportunity for more government control and corruption. Article 30 vaguely refers to types of encouragement for advocates that include a one-time monetary award or dismissal of disciplinary action. While this provision harkens back to the Soviet gramata for meritorious service, the vague language used in the law could provide yet another opportunity for corruption. On a final note, Article 33 enables advocates to form unions if 50 or more members join. On the face of it, this seems like a reasonable provision. In fact, the Armenian government has argued that by creating multiple unions, competition is created, which benefits consumers of legal services. However, this presumes that advocate unions would function as quasi-law firms, but this may not be desirable. Advocate unions, and more generally bar associations, have three main functions. First, they should advocate on behalf of the profession’s interests. The creation of multiple advocate unions dilutes their ability to do this. Second, professional associations of lawyers should provide continuing legal education opportunities, should establish professional standards, should engage in legal public awareness activities, and should participate in law reform. These are not necessarily activities that are best regulated by market principles. If the current draft of the Law on Advocates is passed, it could have two serious implications for the rule of law in Armenia. First, it could undermine the burgeoning independence that may exist among advocates. In fact, some might argue that the government may be using this opportunity to punish the other of the two advocate unions, the International Bar Union, because of its attempts to defend opposition supporters who were detained or arrested during the 2003 presidential elections. Second, the law, if it is adopted, may serve to entrench corrupt practices further within the legal system. Specifically, it is likely that lawyers would continue to constitute a part of a corrupt justice system, channeling bribes from parties in a case to court officials. This can only serve to undermine public confidence in the legal system and delay the establishment of the rule of law.

CONCLUSIONS: It is clear that revisions to the current draft law are necessary for key provisions of any future law to conform to international standards for the legal profession. Other identified provisions, such as Article 30, need greater clarity if they are to remain as part of the law. This is likely to be successful if international organizations like the COE continue to work with the Armenian government to insert appropriate provisions, using the threat of sanctions but also incentives such as tied funding.

AUTHOR’S BIO: Claude Zullo is Associate Country Director for the Caucasus at the American Bar Association’s Central European and Eurasian Law Initiative.

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The Central Asia-Caucasus Analyst is a biweekly publication of the Central Asia-Caucasus Institute & Silk Road Studies Program, a Joint Transatlantic Research and Policy Center affiliated with the American Foreign Policy Council, Washington DC., and the Institute for Security and Development Policy, Stockholm. For 15 years, the Analyst has brought cutting edge analysis of the region geared toward a practitioner audience.

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