Tweet
WHY DOES ARMENIA LOSE AT ECHR?
Mon, 04/01/2013 - 16:25
Ara Ghazaryan
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.
Author: Factinfo
Mon, 04/01/2013 - 16:25
Ara Ghazaryan
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.
Author: Factinfo