YOUNG PEOPLE FOR AN INDEPENDENT AND TRANSPARENT JUDICIAL SYSTEM: CRIMINAL JUSTICE MONITORING
Monitoring is a part of any human rights related project, without which it is impossible to achieve tangible legal changes in public life. Human rights activists carry out monitoring to confirm or deny reports of human rights violations, collect evidence of violations, and other data. The analysis of these data allows further actions to be taken to change the situation. Judicial monitoring is a mean to evaluate the work of courts in general in order to detect violations of the right to a fair trial.
“Helsinki Association” human rights NGO (HAHR) has been conducting judicial monitoring for many years. The OSCE guidelines are a reliable landmark for HAHR, who adapts the tools offered by these guidelines to the Armenian domestic law enforcement system. In this regard, the guidelines of Court monitoring and coverage: External guarantees of Fair Trials developed in 2020 within the framework of the Support to Judicial Reform project is worth mentioning. The guidelines present balanced mechanisms, the implementation of which makes it possible to identify current challenges in criminal procedure.
Co-funded by the Polish development cooperation of the Ministry of Foreign Affairs of the Republic of Poland, in cooperation with the Solidarity Fund PL, on July 15, 2021, HAHR initiated Legally educated young citizens as guardians of an independent and transparent judiciary project, which aimed encouraging youth participation in promoting the transparency of the justice system in Armenia. During the project, court monitoring was conducted in the cities of Yerevan, Gyumri and Vanadzor, with the tools of the mentioned above guide, to collect systematic information on the compliance of observed trials with national and international standards for fair trial, as well as to identify possible gaps in the criminal justice system. The challenges identified and the solutions considered to overcome it are summarized in this report, which seeks a response in a timely manner.
The deadline for the project was December 1, 2021. Four groups of court monitors, which included 110 young people (human rights activists, university and high school students), actively participated in the observation of more than 800 criminal case hearings in six general jurisdiction courts in Yerevan, Gyumri and Vanadzor cities of Armenia.
The methodology of the report
The main purpose of the project was to improve the judicial system in the Republic of Armenia. Derivative objectives were set for this purpose: i. by means of court monitoring, to develop a special reporting scheme and a practical monitoring mechanism to identify gaps in the judiciary as a useful, adaptable and applicable tool, ii. to elaborate proposals addressed to the authorities of Armenia. Overcoming the challenges identified by monitoring is another guarantee for monitoring effectiveness and visibility, and requires to propose appropriate legal solutions.
This monitoring project is systemic, as it involves deep sectoral influence over the justice system. The main goal of the project was to promote broader reforms in the justice system, and the ultimate goal is to support the establishment of an independent, efficient, human rights-compliant judiciary.
Monitoring mechanism effectiveness
Within the framework of the project, the participants gained experience in conducting monitoring by regularly visiting the courts to observe criminal trials with the assistance and direct supervision of the regional coordinators.
The regional monitor-coordinator and the expert offered the young observers useful steps for relevant change in the monitoring process and to increase its effectiveness. Omissions and shortcomings appeared during the trial of observed cases, and were reported. The expert met with the group members and regional coordinators to hear their stories and feedback, and to propose helpful suggestions and advice. He was also in regular communication with the regional coordinators in order to discuss current shortcomings, individually, as well as to offer solutions for significant positive changes.
Over the past month, the project team conducted conclusive discussions with each group, with active group members and regional coordinators to review the draft report, submit proposals for reform, and finalize it.
The report summarizes the suggestions for judicial reform. The suggestions make the implementable useful part of the report.
Formation of the monitoring group and rules of conduct
The guidelines of the Court monitoring and coverage: External guarantees of Fair Trials, developed within the framework of the Support to Judicial Reform project, has already referred to the court monitoring cycle and its constituent phase. In general, the group preparatory activities were aimed at providing the information not spontaneously, but in accordance with the project strategy, which allowed the project managers to form teams of monitors with relevant experience and knowledge, and to determine the number of participants of each phase. It also allowed the monitoring team to effectively distribute the workload according to each participant’s skills and competence, as well as to consider the time objectively required to complete each task.
The fair choice of the aforementioned formula is undeniable in the performance of this monitoring project, which enabled the monitors not only to develop knowledge and skills during the whole monitoring, but also to increase the level of stamina, to manage time, and conduct team work.
The monitoring group was formed mainly by high school students and non-legal entities. The problems they had recorded were so obvious and gross that they were visible even to non-lawyers.
Data collection mechanisms
The only available source of court case information in the Republic of Armenia is the DataLex Judicial Information System. The monitoring groups used it as a key data acquisition tool. In addition, at the end of the court hearings, the monitors could interview the trial parties, in particular, lawyers, representatives of the victims, legal successors and the legal representatives. Interviews with prosecutors were not possible, due to the distant and complex relationship the Prosecutor’s Office maintains with civil society.
Accountability: interim and final reports
The project activities were implemented according to the practical mechanism of court monitoring, which indicates the frequency and form of monitoring, as well as feedback and accountability. Internal accountability of monitors is a means of presenting the coordinators the court case monitoring reports. Local groups of young monitors, led by the regional coordinators, visited the courts from minimum three to maximum twenty times a month, observed the criminal case trials, and made relevant records of the imperfections and shortcomings noticed. They completed the sample court monitoring report paper as a result. The members of the local groups and the regional coordinators met three times a month to discuss the work done, and presented the current challenges and problems based on their reports. During the last month of the project, the monitoring groups participated in a discussion held separately with the project management team to summarize the results, as well as to analyze the identified shortcomings, to formulate them and to make suggestions for reforms.
Conclusions and suggestions
An effective process to improve the judiciary system is, first, to identify gaps and shortcomings in this system, to develop suggestions for necessary revisions, and to submit the suggestions to relevant authorities. The widest and most in-depth reach of this goal can be seen through the use of the template tool, i.e. the court monitoring, which, in order to ensure transparency and credibility, has drawn up a monitoring map and set up monitoring teams.
As a result of the monitoring, not only legislative, but also a number of systemic, customary problems were revealed, which are presented below, according to the monitoring map.
All four monitoring groups reported similar problems, such as opening of court hearings later than scheduled, thus violating the requirement of Article 317 of the Criminal Procedure Code of the Republic of Armenia, or postponing the court hearing even without having opened it, thus contradicting the collective logic of many articles of the Code. They also reported, for example, postponing a court hearing without specifying the reason, which may jeopardise the examination of the case within a reasonable time an essential element of justice.
Besides the most usual violations listed above, the monitoring groups also identified more specific issues that need to be addressed on the map.
Amongst the violations recorded by the Yerevan monitoring groups, we can find:
- Open court proceedings: Many cases were heard in open court hearings, but people present could not hear properly what was said in the courtroom, since it was equipped with glass walls. This observation may present an issue regarding the principle of openness of court proceedings guaranteed by the RA Criminal Procedure Code, the requirement of the RA Law “On Service in the Judicial Department” on the basis of legislative subordination and also the 2018 decision of the RA Supreme Judicial Council No. SJC-25-D-58.
- Mental ability: During an open court hearing, the judge tried to find out whether the defendant had a mental problem after the latter asked the judge to explain him his rights and responsibilities. By such conduct, the judge clearly violated the rights of the defendant, the principle of respect for the rights, freedoms and dignity, and created a basis for serious suspicion of a non fair and impartial trial. Such behavior from a judge is, at least, a lawful basis to initiate a disciplinary procedure against him.
- Witness credibility: Before the court hearing started, the defendant handed over a letter to his wife, after which she testified in court. The accompanying police and bailiffs witnessed the whole event, but did not intervene.
- Witness credibility (2): A witness, who was not inquired yet, was allowed to be present in the courtroom, and therefore to hear the testimony of the other witnesses, which, within the meaning of Article 340 of the RA Criminal Procedure Code, violates the right to a fair trial.
- Access to information – defense rights: When the defendant did not follow and understand the testimony of the witness, and asked the latter to speak a little loudly, the judge “advised” the defendant to wear a hearing aid, thus rejecting the criminal procedure obligation to respect the dignity of the person.
- Covid sanitary rules: The judge and the participants to the trial did not wear a protective mask in many cases, thus violating the rules established by the Government of the Republic of Armenia for the prevention of Covid-19 epidemic.
- Uniforms: Cases of improper or partial / incomplete wearing of uniforms by bailiffs were repeatedly reported.
- Schedule: In addition to delays, there were cases of starting court hearings ahead of schedule.
- Fair trial: In many cases, judges and, with their permission, prosecutors spoke ironically to defendants and their defense
- Fair trial (2): Criminal case or case materials were filed up in the court corridors.
- Fair trial (3): During the trial, when the precautionary measure of the defendant was presented, the judge paid attention to everyone’s opinions, except the defendant’s.
Amongst the violations recorded by the Gyumri monitoring group, we can find:
- Delay: The court hearing was postponed for three years, which contradicts the principle of the fair trial.
- Interrogation: The defendant was interrogated on-line, while the RA Criminal Procedure Code does not provide for such a procedure.
- Follow-up of the case: After the judge ‘s replacement, the case was not resumed for the newly appointed judge, but continued from the interrupted stage. The newly appointed judge did not know what evidence had already been examined in court․ Regarding the principle of legality, this event clearly contradicts the requirements of the relevant norms of criminal procedure.
- Fair trial: The parties were not properly notified of the day and time of the hearing, i.e. the right of the trial participants to be duly notified was violated.
- The case hearings, which were examined by the same staff of people, were scheduled for the same time. Such a situation is clearly excluded by the RA Criminal Procedure Code.
- Fair trial: The judge did not respond to the prosecutor’s statement on the protection of the rights of witnesses, i.e. reasonable suspicions of the prosecutor’s impartiality or equity did not serve as a basis for the judge to sanction the prosecutor.
- Peaceful trial: The judge demanded that a group of juveniles present at the courtroom leave the courtroom, but these same juveniles returned to the courtroom during the case hearing. The judge did not respond to this circumstance, thus having a negative impact on the peaceful conduct of the trial.
- Legality of the procedure: The bailiffs asked the observers questions which did not respect the requirements of the “RA Law on Service in the Judicial Department” and Decision SJC-25-D-58.
- Fair trial: During the defense attorney’s motion at the court hearing, the judge was obviously busy doing something on his phone, expressing obvious indifference to the conduct of the trial. In the sense of Article 70 of the RA Judicial Code, this event constitutes a behaviour of disrespect and impoliteness toward a participant to the trial.
- Legality of the procedure: The judge, without the grounds provided for in Article 342 of the RA Criminal Procedure Code, allowed the publication of the pre-investigation and investigation testimony of a witness absent from the case hearing.
- Public access to justice: Monitors were unable to obtain needed information about court hearings from court staff.
The violations recorded by the Vanadzor monitoring group are as follows:
- Defense’s rights: During the deal offering procedure between the accuser and the defendant of the case, an interpreter service was not provided to the defendant, who did not have sufficient knowledge of Armenian to understand the ongoing procedure. This lack of interpreter violates the requirement of assistance to any defendant who does not speak the language of the legal procedure he is submitted to.
- Fair trial: During the hearing, the prosecutor used psychological pressure on witnesses and defendants, pressure to which the judges did not respond. The judges are supposed to preside over the court session therefore to restrain the prosecutor’s conduct for the interest of justice, if needed. This behaviour violates the judge’s obligations regarding the legal requirements of Armenian criminal procedure.
- Recordings: In order to study later audio and video recordings of the trial, the legal successor of the victim equipped the courtroom with material-technical means, which is exclusively within the responsibilities of the Judicial Department, on the grounds specified
- Fair trial: Observers were removed from the courtroom on certain occasions, without proper justifications
- Fair trial: It was recorded that the judges and prosecutors held warm conversations during court hearings.
- Peaceful trial: During the court hearing, the defense attorney made insulting remarks addressed to the court, which remained unanswered.
- Witness credibility : A witness, who was not inquired yet, was allowed to be present in the courtroom, and therefore to hear the testimony of the other witnesses, which, within the meaning of Article 340 of the RA Criminal Procedure Code, violates the right to a faire trial.
- Recording (2): The court records were not available to produce a copy for interested parties, without any proper justification.
- Legality of the procedure: During the court hearing, the prosecutor did not appear in court․ The judicial secretary called him to obtain some information about his absence. It appeared that the prosecutor considered his appearance in court was compromised by the meteorological conditions (rain).
Suggestions to prevent the kind of violations observed through criminal justice monitoring:
- Though training of judges may not be able to fully reverse customary breaches of justice, it requires deeper approaches that will influence the disrespectful behavior that is often observed from them.
- Disciplinary procedures are not always able to provide the expected results, but it is necessary in terms of showing examples and remind the legal expectations linked to the judge statute. On the other hand, disciplinary procedures must also involve persons who have filed motions for disciplinary liability, whose participation in Supreme Judicial Council (SJC) hearings is important to improve justice transparency.
- A large cooperation network on judiciary monitoring should be established. If an appropriate regulation would be created and enforced, this network could prefigure an established institution of judiciary monitoring.
- Judiciary monitoring is necessary not only for court hearings, but also for the work of bailiffs, especially taking into account the behavior of bailiffs serving in the Shirak region’s Court of General Jurisdiction.
- Regular training of bailiffs is needed, focusing on the issue of profound change in bailiffs’ behavior.
- The availability and updating of information on the review of motions against judicial acts, that do not resolve the merits of the case, in the DataLex judicial information system may be crucial for the effectiveness of judiciary monitoring.
- Access to court hearing information is hampered by defective DataLex judicial information booths in courts. This also requires an immediate solution.
- The decision of the SJC on filming and publisizing court hearings (on the unimpeded work of journalists) is not properly applied in many cases due to arbitrary decisions of some judges. For example, they allow to cover the hearing for 5-10 minutes, which obviously creates obstacles for journalists and drastically limits their work. In this regard, it is necessary that SJC provide individual instructions to judges. In addition, to control the execution of the instructions, it can cooperate with the media covering court hearings, which will make it possible to regularly receive information on the judges guaranteeing the work of the journalists, according to the mentioned instructions.
- Adjournments of cases were repeatedly reported, due to late court notices to the parties to the proceedings. It is indispensable to use the opportunity of dematerialised notifications (by e-mail or on a dedicated platform) allowed by the RA Criminal Procedure Code, to end unnecessary delays in court hearings.
- Courts need to be reequipped technically, including audio and video equipment which is used to examine evidence.
- It is necessary to provide computers to judges in courtrooms, to prevent the use of private mobile phones, and exclude the impression that they are engaged in activities not related to the
- It is necessary to either dismantle the glass walls of courtroom or, at least, to redesign the courtrooms to ensure that all parties, lawyers, and public, are able to properly hear the ongoing discussions and interventions.
- The vicious practice of adjourning court hearings in an unnecessary and improper manner should be ruled out.
- The presence in the courtroom of witnesses before they have been questioned should be excluded.
- The vicious practice of interrogating defendants via video should be eradicated.
- It is necessary to strictly follow the rules on the prevention of Covid-19 epidemic established by the decision of the Government of the Republic of Armenia.
- It is necessary to rule out suspicious warm relationships between judges and prosecutors during court hearings, as well as their sarcastic attitude towards defendants and their lawyers.
- Any document submitted to the court, even for archiving, is subject to safe and proper storage, so the courts should refrain from leaving court records outside the courtroom or appropriated facility, without any proper supervision.
The issues raised may not fully summarize the range of issues that are detrimental to justice; however, they provide a general and visible overview of the purpose of the Project and address problem overcoming challenges.