Паст инфо

Deputy Director of “Arni consult” advocacy office

 

-One of the reasons is the imperfection of the legislation but it is not the major one. 

 

Yes, most of the ECHR cases are late. The structural issues that are raised by the court are already resolved in Armenia in 2009 and 2010. In some cases they are late. From the perspective of subjective rights protection it is good: the violated right of the individual is recovered, but from the perspective of change inside the state they are late, but Armenia has already done that. The European Convention on human Rights is used not only in the scope of ECHR decision, but as RA Cassation court decision and Constitutional court judicial acts. 

 

Why us Armenia losing?

 

It is natural that Armenia should lose, because rights in the entire Europe are in the development process: what wasn’t a right 10 years ago, can be registered as a right today, and that does not mean that we should see whether we violated a right 10 years ago or not. For example, the same was in the same case of Jehovah's witnesses when the court set a new right. 

 

Or, the European court makes new decision and new precedents, with which the scope of the rights in broadening, because new legal relations and new phenomenon appear in the social life. Surely, the grounds of defamation and insult should be reviewed. And as the hearings in the European court last for long, and in the process a new right merges, the court on its own makes a new decision looking back.

 

That is to say, that the thing that is in constant change cannot not register a violation, because the court hearings last for too long. 

 

This is one of the reasons: the legislation and the rights are in the dynamic development: one thing is being said in the international law and it appears that we would use it in the retroactive may. 

 

The second reason is the self-will of the competent authority: police officer, judge. Those decisions constitute a small portion. 

 

But there is a thing: let’s say the attorney presented facts in 2006 and recalls the convention and how it regulates the issue. In 5 years we see that the attorney is right in the ECHR. Does it come out that 5 years ago the attorney knew more than the judge? Because for Armenia the convention entered into force in 2002, and nothing was against the court to apply the convention. But because of various reasons it didn’t, and in some cases a self-will decision was made. In such cases I think that the individual is the reason: the judge, police officer, investigative body or the prosecution. In other words, all the individuals that implement the sovereign will of the state. 

 

For example, in the “A1+” case, when we applied to the Cassation court, the judge of the Cassation court in the process of the hearing, asked me to show the part of the ECHR decision in which it is said that the Armenian judges violated the convention. But there it is mentioned that National Commission on Radio and Television violated Article 10, because the convention was wrongly applied. 

 

But all the cases before reaching Strasburg pass through our judicial system, and are examined. Now, the Armenian courts examined and decided that convention was rightly applied in the case of NCRT, but in 5 years the European Court found that, NCRT misapplied the convention. That means that the Armenian court examination was wrong, the convention was misapplied, because if it was applied correctly it wouldn’t reach European Court. 

 

This is neither arbitrary decision nor the old legislation. This, in my opinion, is the result of lack of knowledge. And that is the reason that attorneys, prosecutors and judges continue their education. And what was previously accepted as postulate that one cannot, for example, in the case of capital crimes pay deposits, for decades we have lived this way or that, precautionary measure was mentally perceived the way of punishment, now there is a widespread belief that in the crimes cases the use of deposit is possible. This is a result of learning. 

 

Or, until recently, the investigators were writing “The individual committed a crime” in the precautionary measure motion. Today that culture does not exist anymore and it is said “The person is being accused of crime”. We see that the culture is changing. We should all learn. 

 

In other words, the convention is being violated also because there are a lot of things that we don’t know and should learn. We all. It comes out to be a little declarative but it is so.