Maryland Bar Bulletin
Publications : Bar Bulletin : March 2008

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The law of supply and demand does not often apply to the court system. But at a conference on preventive measures against torture that I attended in Yerevan, Armenia, an Armenian advocate used the analogy of supply and demand in terms of evidence for cases in the courts in Armenia. The courts demand evidence, he said, and therefore the courts will be (emphasis added) supplied with evidence, such as confessions made because of torture.

The European Court of Human Rights (ECHR) heard one such Armenian case – the Maghis case, about the arrest and torture of a soldier who confessed to the murder of another soldier. Several of the witnesses were also tortured. The case became notorious because the First Instance Court Judge, in his written decision, stated that in order to get the truth, torture may be necessary. (In this case, the defendant’s fingernails were crushed.) The decision of the First Instance Court was affirmed at each appellate level, but was then appealed to the ECHR, which ruled in the defendant’s favor and against the Republic of Armenia. Armenia sanctioned the Judge of the First Instance Court (the trial judge) by cutting his pay in half for six months. None of the appellate judges who affirmed this decision was sanctioned. It was never stated in the discipline, but it was widely surmised that he was singled-out because of his explicit statement on torture in his decision. Other judges might have agreed, but it surely was a red flag for the ECHR’s review to state the policy so blatantly.

Torture is not confined to criminal suspects. A day after I arrived in Armenia, the case of the torture of a witness was in the news. The Human Rights Watch World Report 2008 Armenia: Events of 2007 detailed the events in this case:
The death in custody of Levan Gulyan highlights concerns about continuing torture and ill-treatment of suspects and witnesses. On May 9, 2007, Gulyan, a restaurant owner, witnessed a fight between several individuals, which resulted in one person being shot dead. Gulyan was called to the local police station repeatedly for several days for questioning. On May 12, after questioning Gulyan at the Ministry of Internal Affairs, officials informed Gulyan’s family that he had died after supposedly jumping from a second-storey window. At the request of the family, Armenian authorities allowed international forensic experts to conduct an autopsy. Although the experts could not determine the circumstances in which Gulyan fell, they concluded that the severe injuries causing his death were consistent with a fall from a second-storey window and that “a few of the smaller bruises and abrasions could have been caused by another force, e.g. a punch or a blow, prior to the fall.”

From April 26, 1992 (when Armenia acceded to the European Convention on Human Rights and Fundamental Freedoms), until December 15, 2007, a total of 983 applications were lodged to the ECHR versus this country. The bar association – the Chamber of Advocates, with whom I work – is sponsoring continuous training on ECHR cases and procedures. In trials, I have observed advocates frequently argue ECHR case law for criminal charges and advocates are eager to learn ECHR procedures to file cases.

The reason why cases are brought to the ECHR from former Soviet republics is explained by the news report by Radio Free Europe on January 23, 2007:
Many of those applications are coming from countries in the Commonwealth of Independent States that are now members of the Council of Europe (Russia, Ukraine, Moldova, Armenia, Azerbaijan, and Georgia). Olga Vishnyovskaya, a Russian lawyer at the court, says this is largely the result of failed judicial systems in former Soviet states.

“Nearly all applicants who turn to the court say there is no efficient means to defend their rights within the country,” says Vishnyovskaya. “Many of the applicants feel so much distrust toward Russian authorities that they don’t even file a case with them before filing it with us.”

Russia files the most complaints with the human rights court, but the others have substantially boosted the number of applications to the court. Strasbourg is also receiving a steady stream of complaints from Armenia, with 250 applications lodged last year.

Barbara L. Edin is a Maryland attorney working overseas.

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Publications : Bar Bulletin: March 2008

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