Advocates’ Harassment

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Mass prosecution of advocates had begun since July 17, 2016, the time they were involved in the defense of the criminal cases initiated in respect to the capture of the Patrol Service Regiment in Yerevan. Courts had been sanctioning advocates for “disrespectful treatment against the court”, and then the Chamber of Advocates subjected them to a widespread disciplinary liability. The vivid evidence of this was the fact that in 2017 the Board of the Chamber of Advocates initiated 86 disciplinary proceedings, of which 69 were only related to the case of the Sasna Tsrer. Any statistical data for 2018 are not available yet.

The entrance of the advocates to the courtroom was also hindered by court bailiffs; there were threats against the advocate Arayik Papikyan and his family members on the Facebook social networking site. The person/s who spread threats has not been disclosed so far.

The issue of the harassment against advocates involved in high-profile cases was once again raised during a round-table discussion entitled “Advocating Advocates' Rights in Armenia”. It was within the frames of the program of advocates' rights advocacy in Armenia implemented by the Helsinki Association in support with the European Endowment for Democracy (EED). The program touched upon the activities of more than 17 advocates, more than 55 criminal cases were monitored in which the prosecuted advocates are involved. Within the framework of the program, a number of disciplinary  hearings of the CA Board were also been monitored and interviews on various topics related to their professional field were conducted with the prosecuted advocates and public defenders.

During the round-table discussion, Arayik Papikyan, who is also involved in the high-profile cases as a defense lawyer, noted that, regardless of the conditions under which the advocates were subjected to judicial sanctions, the Chamber arguments represented the following template formulation: “Having analysed the above-mentioned, the advocate clearly realised that his actions were not legitimate and allowed a violation of the ethics rules of the advocate's conduct, consequently the following measure of liability should be applied against him.”

 Meanwhile, advocates clearly stated that they had acted only for the benefit of their defendants, to ensure a fair trial for them, and to protect the high reputation of the advocates’ community as well. “It can be supposed from the letter of the Chamber that the advocates had realised that they violated, and they allowed the violation,” said Araiyk Papikyan. Most advocates disagree with the decisions of the Chamber of Advocates, and they appeal the decisions in the court. But here too, we have reached deadlock.

“Having examined the advocate's complaint, the court should essentially acknowledge that another judge has made an incorrect decision against the advocate. Taking into account our judicial system and who the judges are, this can arouse suspicion,” added Arayik Papikyan, who himself has been subjected to more than two dozens of disciplinary sanctions. In his words, advocates should not be identified with their defendants.

During the round-table, opinions were expressed that the disciplinary proceedings subjected against the advocates should be dismissed as they had been initiated by the order of the former authorities.

 The participating advocates expressed their opinion about the law that came into force on January 1, 2019, according to which the advocate may be fined up to 100,000 Armenian drams for a disrespectful attitude against the court. “One of the biggest arguments is that the judge himself offends, he makes a decision and he punishes. To perform his direct duties, the advocate may be fined,” said the advocate Nina Karapetyants, head of the “Helsinki Association” NGO.

The advocate Arayik Papikyan stressed that if the advocate is going to pay that money and is not going to appeal, it means he has been disrespectful. After that, the Chamber of Advocates should initiate disciplinary proseedings and if they find out that the advocate has violated the rule of conduct in the court he will once be warned. “That is, for my one violation, I will be punished twice. Meanwhile, it is a fundamental principle is not to be convicted twice for one and the same action”.

Still on February 4, 2019, the “Helsinki Association” human rights NGO applied to the NA Speaker and MPs, including former lawyers, who are now parliamentarians, to propose to eliminate the law or edit it so that it does not refer to them. No response has been received yet. According to Nina Karapetiants, the current powers can change that law as they have enough votes. “To make sure that steps are taken as a result of the revolution, that law should be abolished,” added advocate Hayarpi Sargsyan.

Proposals were put forward which will be summed up and presented during the next scheduled round-table meeting.

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On March 7, 2019, the "Helsinki Association" human rights NGO is inviting a round-table meeting-discussion on the topic of “Advocating Advocates' Rights”.

The purpose of the discussion is to identify the existing shortcomings in the legislative field dealing with advocacy activities that seriously hinder active and effective functioning of the field actors, those various harassment and pressure they are subjected to while performing their professional duties, and to suggest potential steps aimed at the solution of challenges and legislative amendments, for further elaboration and proposals to the Government of Armenia.

The round-table meeting will take place at "Garni" Hall of "Ani Plaza" Hotel (19 Sayat-Nova, Yerevan) from 18.00 to 20.00.

On the agenda, presenting challenges in the legislative field related to advocacy activities during the past two years, and offering solutions.

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The Board of the Chamber of Advocates has initiated over a year 22 disciplinary proceedings against the “Helsinki Association” advocate Arayik Papikyan.

Disciplinary proceedings were initiated against not only Araik Papikyan, but also the “Sasna Tsrer”, the opposition leader Zhirayr Sefilyan and others’ defense lawyers accused of the involvement in the capture of the Patrol Service Regiment.

The advocates had long been subjected to sanctions by the presiding judges while they tried to protect their and their clients’ legitimate interests and rights. During the proceedings, the defendants were deprived of the right to a fair trial, and as a sign of protest left the courtroom; the defense lawyers acted in the same way, referring to the request of their defendants not to attend the hearings if they were not present there.

Very often the advocates were not even permitted to enter the courtroom; yet, as a result, they were subjected to sanctions and then were subjected to lability by the Chamber of Advocates.

The defense lawyers involved in high-profile cases think that the lability that was suggested by the Board of the Chamber of Advocates in politically sensitive cases were prosecutions.

The Board of the Chamber of Advocates initiated 22 disciplinary proceedings against Arayik Papikyan. Of the 6 of these proceedings Arayik Papikyan was justified, and 11 cases have currently been appealed in the court.   

Hearings have already been scheduled for most of the cases. The judge Anna Pilosyan scheduled a hearing for February 5, but Arayik Papikyan did not appear before the court, as the notification on the February 5 hearing was received by him only on February 27.

And the judge Hayarpi Zargaryan left the advocate's complaint without examination. On Tuesday Arayik Papikyan went to the court in the Malatia-Sebastia administrative district court (where the sessions had usually been held before). “Just minutes before the session, I found out that I went to the wrong address. I called the court and asked to postpone the hearing if it is possible. They registered my call and then I found out in the “Datalex” system that the court left the application without examination,” informed Arayik Papikyan.

The advocate is going to appeal it after he has received the decision. Arayik Papikyan supposes that the court left the appeal without an examination through the formal procedure. “If they are going to implement justice in such a way, then I do not want that the judge should be paid his salaries in the expense of the taxes I pay. She should not have guarantees on my account for doing formal work,” he added. 

            Nina Karapetyants, an advocate who has been involved in high-profile cases, has been subjected to six disciplinary sanctions so far. Five appeals have already been filed in the Court of General Jurisdiction.

Advocates Mushegh Shushanyan, Yervand Varosyan, Lusine Sahakyan, Hayarpi Sargsyan, Ara Gharagyozyan, Inessa Petrosyan, Grisha Balasanyan, Harutyun Baghdasaryan, Liparit Simonyan, Tigran Hayrapetyan, Ara Zakaryan, Hrant Gevorgyan and David Gyurjyan were also subjected to disciplinary sanaction within the cases.

Besides Arayik Papikyan and Nina Karapetyants, Lusine Sahakyan, Yervand Varosyan, David Gyurjyan, Mushegh Shushanyan and Tigran Yegoryan are also appealing the decisions of the Chamber in the court.

   

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In the history of 28-year-old independent Armenia, 11 amnesties were used in 1992, 1995, 1997, 1998, 2001, 2006, 2009, 2011, 2013, and 2018. In addition, after a month the amnesty was announced on July 5, 1995, on the occasion of the adoption of the Constitution of the Republic of Armenia, another amnesty was announced, as the NA decision “to declare amnesty on the adoption of the Constitution” changed as a result of which the amnesty was also extended to Article 185 of the RA Criminal Code, (intentional destruction or damage to another's property, which has caused significant damage) on the second and third parts.

On October 31 last year, then acting Minister of Justice Artak Zeynalyan at the special session of Parliament presented the draft law on Amnesty and Amendments to the Criminal Code, held on the occasion of the 2800th anniversary of the foundation of Yerevan and the 100th anniversary of the First Republic, stating that it would be spread over 6500 people and would be a large amnesty.

The name of the group “Sasna Tsrer” was also included in the list to be pardoned.  However, they would only be released from criminal prosecution when the victim side did not object. The victims' opinions had never been considered during the ten amnesties declared before.

By the way, the Chief of Police of Armenia, then Deputy Chief of Police of Yerevan, Valery Osipyan already objected to amnesty, which means that "Sasna Tsrer" will not make use of the pardon.

"In this particular case, I do not understand the logic. Since the first day I have kept saying that this is a very discriminatory amnesty. The discriminatory attitude towards those who tried to rebel is not absolutely acceptable to me,"says Nina Karapetyants, the head of “Helsinki Association” NGO.

The defense lawyer in the case of “Sasna Tsrer”, Arayik Papikyan says that the pardon is sometimes granted for a specific purpose, meaning that there is no need to look for a jurisprudence in itself; it is also a political decision. The advocate emphasizes that as the process showed, police officers are only against the application of the pardon in this case, while others do not object.

"The chief of the police was one of the representatives of the state's supreme power to object. It was unclear that the state, the supreme power, on the one hand, announces about the initiation of a process of reconciliation in the society, on the other hand, another representative of that power objects to it. This is the policy of today's state supreme power. The right hand does not know what his the hand is doing, "says Arayik Papikyan.

The advocate believes that it is absurd in the legal sense to give such a regulation because, because it has not asked anyone's opinion when applying amnesty during the previous years. "Amnesty was applied on March 1 cases. We had 10 victims, two of them were policemen, hundreds of victims, people subjected to physical violence, and many police officers were among the victims. Neither the Chief of Police nor other people did not object, but there was no norm or provision on asking their opinion in the amnesty decision."

Instead, another defense lawyer in the case, Ara Gharagyozyan underlines that there were cases when victims were against yet the pardon was granted.

"I'm upset that Artak Zeynalyan, as a human rights defender, always raised the issue of the certainty of the law, fighting against discrimination, but now this decision in essenceis a discrimination. Why should not everyone be equal before the law? I find  this to be an anti-constitutional norm, and that everyone must be equal before the law. If all are victims, they should be treated equally; the "Sasna Tsrer" should not be separated, and other victims be ignored," says the lawyer.

The defense lawyer in the “Sasna Tsrer” case, Arayik Papikyan knows well why such amnesty was applied: it was because elections were anticipated in the near future.

"The authorities tried to provide a relative tranquility in the public domain as much as possible. They were not only able to get enough votes, but in the future, the tension spots that could have hindered or affected the elections, were no longer essential to the authorities. In this regard, I think the authorities have made a serious and fatal mistake in their calculations. Their own calculations will have very serious consequences for themselves," concludes Arayik Papikyan.

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To the National Assembly of the Republic of Armenia

Letter of Proposal

Dear NA Speaker Mr. Mirzoyan,

Dear Advocate-MPs,

Dear MPs,

There are some norms set forth in the amendments to the RA Law on the Administrative Procedure and the RA Criminal Procedure Code took effect 23 March, 2018, as well as in the RA Civil Procedure Code entered into force on 9 April 2018, that stipulate that a penalty by the court may be imposed for a maximum of 100,000 Armenian drams. These legislative amendments are directed especially against advocates. Such a legislative “lash” against human rights activities of the advocates is unacceptable in a democratic society.

These days, we still witness another process of a “lash” initiated against the advocates (human rights activities), i.e. increasing the tax burden.

We hereby propose that the possibility of application of a fine imposed against the advocates by the abovementioned codes  through legislative amendments should be abolished.

By doing this, you will also confirm that advocacy (human rights defense) is appreciated in Armenia. It will also be an impetus for the executive power to abstain from new and unfounded restrictions imposed against the advocates.

Respectfully,

/signed by/

Nina Karapetyants (human rights defender-advocate)

Arayik Papikyan (human rights defender-advocate)

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