Publication

Rustam Makhmudyan
Senior expert at the RA Human Rights Defender's Office, post-graduate student of the Chair of Constitutional Law at the law department of Yerevan State University

February 2007

SOME CONSIDERATIONS ON ENSURING OF THE NATURAL OPERATION OF THE RA HUMAN RIGHTS DEFENDER

Alongside with solving a number of economic, political, social, cultural, as well as international legislative problems, the Republic of Armenia, which has promulgated itself a constitutional country that has chosen the direction of democratic development, should ensure the rule of law and the protection of rights and freedoms of the citizens as well. Realization of the above mentioned issues might be possible through the establishment of the principles of social justice, elimination of the orientation to give preference to the idealization of the law enforcement activities and protection of the social interests, and ensuring equal protection of social and individual rights. In this context a rather obligatory and independent role is reserved to the institute of the Human Rights Defender (Ombudsman), which may be a real actor of protection of the individual's rights from the self-willed actions of the state power, when it is proved to be an independent from the powers body, which is free from political, ideological and lucrative prejudice. The institute of the Human Rights Defender is a novelty in Armenian reality, and naturally it is far from being perfect in its relations with the state and local government bodies, and at the same time the existing omissions need improvement. We think it is due to mention a number of the most essential legislative contradictions that refer to the principles of the Law of RA on the Human Rights Defender. One of the most important things here is that the bodies (the investigation body, the investigator, the prosecutor, the court), which realize the criminal process, should in their part guarantee the problem of the individual's rights and freedoms. In this sphere there are visible differences both in the legislation as well as in the practical work, starting from the stage of initiating the criminal case until the hearing in the Court of Cassation of the Republic of Armenia. In particular a great number of complaints provided to the Ombudsman refer to fact of denial to cancel the criminal case on the requirement of the appellants by the preinvestigation bodies, as well as to the decisions of the prosecutors and the courts denying canceling those cases. In this respect it is due to present the complications, which occur in the practical work in the context of legislative differences. Thus, the first part of Article 180 of the Criminal Procedural Code provides that the communications referring to crimes should be considered and solved immediately, at the same time the grounds for initiating the criminal case and their legality should be enough conduct examination during the 10 days from their receipt. The study of the appeals on the contrary reveals that the criminal investigation bodies very often violate the mentioned norm. Often this is explained by the fact of overload of the work, which may not serve as a univocal condition to reprieve or alleviate the responsibility. In addition a rather vast number of complaints refer to weak improper supervision by the prosecutors. Some definite contradictions occur when the citizens require information or documents referring to the cases from the bodies realizing the criminal procedure. In particular, paragraphs 2, 3 and 6 of Part 1 of Article 12 of the Law of RA on the Human Rights Defender state that after the decision on considering the appeal is taken, the Ombudsmen has the right to study the issues raised in the complaint, and is entitled to apply to any state or local self government body or their officials, except the courts and the judges and require and receive the necessary materials and documents to get acquainted with all the issues, explanations and details, which are obtained during the process.  In contrast to this according to part 1 of Article 201 of the Republic of Armenia Criminal Procedural Code the details of the preliminary investigation may be published only with consent of the body, which conducts the proceeding. "The order of carrying out the proceeding of the criminal case in the territory of the Republic of Armenia is regulated by the Constitution of the Republic of Armenia, this code and other relevant laws. The order of carrying out the proceeding of the criminal case established by the Criminal Procedural Code is compulsory for all courts, investigation, preliminary investigation and prosecution bodies, as well as for the participants of the legal procedure." According to the RA Law on Legal Acts, all the laws of the Republic of Armenia should comply with the Codes in the sphere of legal relationship (Part 1 of Article 9). Part 2 of article 6 of the RA Law on Prosecutor's Office in its turn states that the prosecutor, the investigator is not obliged to provide explanations on cases, or materials under their proceeding, or provide them for consideration but for the cases and order provided by the law. Further, according to paragraph 5 of part 1 of the Article 12 of the Law of RA on the Human Rights Defender, the Ombudsman is authorized to get acquainted with the court decisions, verdicts and judgments on criminal, civil, administrative, economic cases and other offences that have come into legal force, as well as with the materials, which were denied to initiate a criminal case. As it is obvious the law does not mention the decisions on dismissal of criminal proceeding or abatement of the criminal action, as well as of the decisions on termination. The practice, which has been established in the practice of the Human Rights Defender's staff, testifies that when requiring the dismissed or terminated cases they face problems such as simply not providing the case, or refusal to provide the case with reference to the criminal procedural legislation, or such permission is granted, but the study of such case is conducted in the office of the relevant state body. Consequently it is necessary to realize corresponding changes both in the Republic of Armenia Criminal Procedural Code as well as in the Law of RA on the Human Rights Defender. We think the Ombudsman should be entitled with certain authorities in the sphere of legal procedural activities. This should be aimed to supplement the systematic structures of the protection of the individual's rights in the criminal procedural sphere and not changing the bodies, which realize the criminal proceeding (investigative body, investigator, prosecutor, court).

Publication

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Arpine Yeghikyan, Advocate, AYLA Board Member

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Marat Atovnyan, Lawyer, Head of the AYLA Professional Committee of the History of Armenian Law

THE UNTOUCHABLES: IS IT POSSIBLE TO SUE A JUDGE IN ARMENIA? November 2007
Gor Hovhannisyan, Senior Expert, Constitutional Court of the RA

THE PRINCIPLE OF HUMANITY IN THE CRIMINAL PROCEDURE. October 2007
Lyudvig Davtyan, Post Graduate student of the Law Department of Yerevan State University

MAKING WILL AS A CONSTITUTIONAL RIGHT OF THE CITIZEN. September 2007
Gayane Hakobyan, Lawyer

DESCRIPTION OF THE COMPLEX INSTITUTE OF BANKRUPTCY AND ITS PRIMARY GOALS. July 2007
Armine Avetisyan, Lawyer

THE CURRENT STATE OF AFFAIRS REGARDING POLITICAL EQUALITY FOR MEN AND WOMEN IN ARMENIA. June 2007
Karen Zadoyan, President of the Armenian Young Lawyers Association, UN Expert

GENERAL CHARACTERISTICS OF THE RA BUILDING LEASEHOLD. May 2007
Tirayr Vardazaryan, Lawyer

PECULIARITIES OF DEMONSTRATION OF QUANTITATIVE FEATURE IN CORPUS DELICTI "BANDITRY". May 2007
Sargis Madatyan, Lawyer

LEGAL CONSCIOUSNESS AS AN IMPORTANT COMPONENT FOR THE ESTABLISHMENT AND DEVELOPMENT OF YOUTH. May 2007
Liana Harutyunyan, Advocate, "LEGAL ALLIANCE" Law Firm

FORMATION OF THE HUMAN CAPITAL THROUGH EDUCATION AS A SOURCE FOR THE IMPROVEMENT OF THE QUALITY OF LIFE AND ECONOMIC GROWTH. May 2007
Hripsime Bazikyan, Lawyer

SYSTEM OF VALUES, MATERIAL FROM THE COURT PRACTICE. April 2007
Gevorg Gyozalyan, Advocate, "LEGAL ALLIANCE" Law Firm

SOME PROVISIONS OF CONSTITUTIONAL REGULATIONS OF FREEDOM AND IMMUNITIES OF AN INDIVIDUAL. April 2007
Lyudvig Davtyan, Lawyer

INTERNATIONAL LEGAL EXPERIENCE ON POLITICAL EQUALITY OF RIGHTS OF WOMEN AND MEN. March 2007
Karen Zadoyan, President of the Armenian Young Lawyers Association

SOME ISSUES OF CRIMINAL RESPONSIBILITY FOR INCOHATE CRIMINAL ACTION. March 2007
Lilit Tadevosyan, Prosecutor of the RA General Prosecutor’s Office Department on Supporting the Prosecution on Criminal Cases in Courts, PhD, lecturer of the law department in Yerevan State University

SOME CONSIDERATIONS ON ENSURING OF THE NATURAL OPERATION OF THE RA HUMAN RIGHTS DEFENDER. February 2007
Rustam Makhmudyan, Senior expert at the RA Human Rights Defender’s Office, post-graduate student of the Chair of Constitutional Law at the law department of Yerevan State University

THE MAIN PROBLEMS OF INTERRELATIONS OF THE NATONAL ASSEMBLY AND THE PRESIDENT OF RA IN THE CONTEXT OF CONSTITUTIONAL REFORMS. January 2007
Hasmik Yengoyan, PhD in Law, Associate Professor, Senior Prosecutor of the Legal and Structural Reforms Department of the RA General Prosecutor's Office

PRECONDITIONS OF INTERNATIONAL LEGAL RESPONSIBILITIES OF STATES. January 2007
Armen Arsenyan, 2nd year Magistrate Student of the Law department of Yerevan State University

THE FAMILY POLICY IN FINLAND. January 2007
Arshavir Khalapyan, Lawyer

ENSURING THE RIGHT FOR THE COURT PROTECTION IN THE RA. December 2006
Gor Hovhannisyan, Senior Expert, Constitutional Court of the RA

EFFICIENCY OF THE ALTERNATIVE PUNISHMENT IN ARMENIA. December 2006
Anna Margaryan, PhD in Law, Assistant at the Chair of Criminal Law of the Law Faculty of Yerevan State University

MAJOR PRECONDITIONS FOR THE DEVLOPMENT OF THE ADVOCAY ARE ESTABLISHED. November 2006
Gevorg Martirosyan, 4th year student of the Law Department of French University of Armenia; Winner of the Third Republican Scientific Conference on Advocacy

INTERNATIONAL PRACTICE OF CENTERS FOR FREE LEGAL SERVICES AND DISSEMINATION OF INFORMATION. November 2006
David Abgaryan, Advocate, "LEGAL ALLIANCE" Law Firm

CONSTITUTION OF THE RA ON THE WAY OF ESTABLISHMENT OF THE CIVIL SOCIETY. October 2006
Yester Barseghyan, 5th year student of the Law Faculty of Armenian State pedagogical University of Kh.Abovyan; Second Price winner of the Conference; Winner of Nomination "Best Written Report"

THE ROLE OF THE CONSTITUTIONAL COURT IN THE PROTECTION OF HUMAN RIGHTS. September 2006
Arpine Yeghikyan, Lawyer, Armenian Young Lawyers Association

THE ROLE AND IMPORTANCE OF CONSTITUTIONALIZATION OF THE NATIONAL LEGAL SYSTEM. August 2006
Vrezh Gasparyan, Deputy Head of RA National Assembly Legislative Analysis and Development Department; Second Class State Counselor of Justice of the Republic of Armenia

MODELS FOR MANAGEMENT OF THE LAW COMPANY. August 2006
Karen Zadoyan, President of the Armenian Young Lawyers Association

ANOTHER PHASE OF REFORMS. July 2006
Narine Karapetyan, Editor of the Legal Newsletter

ABOUT THE IDENTITY OF THE NOTIONS "ACCORDING TO THE LAW" AND "IN THE ORDER PROVIDED BY THE LAW". July 2006
Lyudvig Davtyan, 2nd year Magistrate Student of the Law Department of Yerevan State University

SOME ISSUES FROM THE COURT PRACTICE ON DISTRIBUTION OF THE RESPONCIBILITY TO PROVE IN THE CIVIL PROCEDURE. July 2006
Liana Harutyunyan, Advocate, Member of the Chamber of Advocates of the RA

THE PROFESSION OF LAWYER IN GREAT BRITAIN. July 2006
Lusine Abgaryan, Lawyer, Assistant to the judge of the RA Court of Cassation

THE ROLE OF PROFESSIONAL ADVOCATES' ORGANIZATION FOR THE ESTABLISHMENT OF THE RULE OF LAW. June 2006
David Abgaryan, Lawyer, Member of the Chamber of Advocates of the RA

THE MAIN PROBLEMS OF THE REPRESENTATION OF THE ADVOCATE/REPRESENTATIVE IN THE CIVIL PROCEDURE. June 2006
Liana Harutyunyan, Advocate, Member of the Chamber of Advocates of the RA