Equal Access to Justice

and increasing expectations and awareness of the need for transparency and accountability in public life, have been commonly mentioned as recent areas of change for the better in Armenia. As in other transitional coun-tries, these factors serve to ensure that old approaches are no longer acceptable. The government of Armenia tries to achieve this by supporting programs related to the following:

• increased citizen participation in policy develop-ment and oversight of governdevelop-ment;

• the availability of multiple sources of information;

• a more responsive and effective local government;

• a more responsive and effective parliament; and

• a transparent, dependable and effective legal system.

The ultimate beneficiaries of administrative re-forms are the citizens of Armenia, who gain not only an understanding of how to act upon their rights and responsibilities in a democracy, but also access to stronger democratic institutions.

3.2 Creating a Framework

politi-cal, or religious category, social or economic class, or physical incapacity. Where apparently equitable rules may in fact bar access to such groups, special measures may be introduced (e.g., subsidized legal services, interpreters for those who cannot com-municate in the court language) in compensation”

(1998).

Establishing an independent judiciary was among the most important institutional achievements in post-socialist Armenia. Common constitutional features in this direction regard the method of appointment. In proceedings, typical arguments such as popular sover-eignty, representation, method of appointment, lack of transparency and openness were used in opposition to constitutional control.

The defense of citizens’ rights and legal interests is considered one of the main principles of local self-governance in Armenia. Local governmental bodies may apply to a court and discuss any problematic issue—those raised between community members and local governmental bodies, or between a community head and the council. According to law, local self-governmental bodies have the right to complain against the decision of state bodies and officials for breaching rules in local governance.

The legal system includes (but is not necessarily limited to) such institutions as trial and appellate courts,

the judiciary, other court officials, administrative courts, the prosecution, public defense, police and other enforcement agencies, and prisons, as well as non-governmental entities such as bar associations, advocacy organizations, legal aid service providers, law schools, and other private organizations. The binding character-istic is their involvement in legal dispute resolution.

Research has shown that, in general, respondents are not well informed about the legal system of Ar-menia. Only 3 percent of respondents think that they know enough about the court system and their legal rights; nearly 70 percent feel as though they do not have enough information about their legal rights in local governance, and 21 percent answer that they have

“some” knowledge. Education level and background play an important role in this survey: educated people tend to be more interested in legal and court systems.

Respondents largely (88 percent) distrust the courts, however, because they do not make “fair decisions.”

Similarly, 86 percent do not think courts are fair or act in the interest of all community members equally (Figure 15). That said, most citizens had never actually approached a court. Of those that had, one-third were satisfied with the decision. Finally, 96 percent believe that the legal system and the court are not independent from the state; according to the Foreign Investors’ As-sembly, courts in Armenia are the second most corrupt state structure in Armenia (2001).

Figure 15.

Questionnaire: Do Courts Act Fairly and Equally in the Interest of All Citizens?

63% Strongly disagree 23% Somewhat disagree

11% Somewhat agree 2% Strongly agree 1% Do not know

Generally, respondents stressed the following rea-sons for not applying to a court:

• lack of trust (44%);

• delays in issuing a final decision (16%);

• high incidence of bribery and corruption (23%);

• high application fees and additional illegal pay-ments (6%); and

• lack of knowledge about the right to appeal (11%).

Access to justice will be limited if there are barriers, including formal and informal institutional and legal biases. Legal requirements may impose exceptional hardships on some groups—for instance, unusually large fees, or the requirement that a woman get permis-sion from a male relative before appearing in court. As well, services may be located so that some (particularly rural inhabitants) must travel long distances, or institu-tional members may have certain prejudices affecting the performance of their duties.

Effectiveness is the degree to which the legal system (and justice sector institutions in particular) resolve disputes in a timely, predictable, and reliable manner;

fairness is the degree to which justice sector institutions uphold principles of law in a manner that serves the public interest while treating all individuals according to the same standards. Fairness would also prohibit any arbitrary favors to any individual or group, unless prescribed by law. Importantly, legal organizations must be staffed by professional individuals, with specialized training and skills. A personnel system should be based on recognizing and rewarding professionalism.

A quick read of the Law on Self-government would seem to suggest that local governments in Armenia have been delegated broad powers by the state. For example, the Law states that “Local self-government is the right and capacity of local self-government bodies acting at their own responsibility, to dispose of community’s property and to resolve problems of community im-portance with a view to improving the well-being of the population.” However, a careful review of this Law reveals references to other laws that often take away from or severely limit those very powers and responsi-bilities that the basic law appears to grant. Moreover, the non-institutionalized nature of LGUs vis-à-vis the state make uncertain the amount of informal discretion-ary prerogatives available to local officials. When these

limited or ambiguous legal powers are considered in the context of a very low fiscal capacity and a high level of dependency upon state subventions, LGUs in Armenia are capable of little political, social, or fiscal impact.

In economic and financial spheres, the Law on Local Self-government upholds the notions of appro-priate revenue assignment, property rights, and equity.

The Law also permits the devolution of responsibility for the management of utilities and other communal services to the private sector through tender proc-esses.

Public confidence in local government suggests im-provement. A citizen participation survey, conducted in late 2000, shows a decline in citizen confidence in most governing institutions, except in the case of local government. The NGO sector’s rating in the NGO sustainability index did not change from the previous year, which reflects that the sector is developing—but that it remains financially and organizationally weak.

Although there have been some examples of NGOs suc-cessfully advocating policy, legislative, and procedural changes, such incidences are not the norm. Progress in the legal sector lagged significantly behind expectations, with only marginal improvements in citizens’ access to the court system and in the professional standards and qualifications of advocates and judges. To note, the passage of a mandatory judicial code of ethics was expected, but revised during the year because of a lack of local understanding of and support for such a self-regulating process.

Decentralization usually begins with a legal frame-work, which sets out the responsibilities, powers, and resources for each level of government. The Charter of Local Self-government of the Council of Europe can be used as a point of reference for Armenia. The Charter offers a striking view of local government rights and du-ties, showing how seriously the principle of subsidiarity should be taken. It declares that local self-government is a cornerstone of autonomy, which should be supported by a broad set of rights and competencies.

The results of the USAID/Armenia Governance Index (a score of 1 out of 64) reflect the lack of progress made in the passage of critical legislation in the past year. This index measures the status and quality of leg-islation by looking at the adoption, supporting regula-tions, and implementation of legislation in six critical areas: civil service, public disclosure of assets for public

officials, the institution of the ombudsman, administra-tive procedures, freedom of information, and govern-ment procuregovern-ment. In 2000, only one relevant law was passed (in the area of government procurement), but, at the time of writing, the regulations necessary for full implementation were not yet in place.