ARMENIA NARROWLY AVOIDS A MAJOR MISSTEP IN PROPOSED LEGAL

UNCLAS SECTION 01 OF 03 YEREVAN 001419

SIPDIS

SENSITIVE

SIPDIS

STATE FOR INL, EUR/ARM
DOJ FOR OPDAT/LEHMANN AND NEWCOMBE

E.O. 12958: N/A
TAGS: PGOV SNAR KCRM KJUS AM
SUBJECT: ARMENIA NARROWLY AVOIDS A MAJOR MISSTEP IN PROPOSED LEGAL
REFORM FOR USING EXPERT WITNESSES

Sensitive but unclassified. Please protect accordingly.

Summary
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1. (SBU) A recent attempt by the Armenian Ministry of Justice to
propose judicial reforms in the chaotic area of expert witnesses
came perilously close to making a bad situation worse in criminal,
civil, and administrative legal proceedings. During the week of
September 11-15, 2006, representatives sent by the U.S. Department
of Justice persuaded the Minister of Justice to reject poorly
drafted legislation that would have revamped the Armenian system for
regulating, qualifying, and using experts in all areas of expertise,
from toxicology and ballistics, to copyright and economics. End
Summary.

DOJ Legislative Experts Engage Justice Minister
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2. (SBU) The Department of Justice Office of Overseas Prosecutorial
Development, Assistance and Training (DOJ/OPDAT) Resident Legal
Advisor (RLA) Cynthia Lie, posted to Embassy Yerevan and Jeffrey
Kahn, former DOJ Attorney and current Law Professor at Southern
Methodist University School of Law, met repeatedly with the Minister
of Justice (MoJ) Davit Harutyunyan, the Deputy Minister Ashot
Abovian, and the Ministry's legislative team. The RLA and Professor
Kahn successfully persisted throughout the meetings in the position
that Armenian legal reform needed to steer in the direction of
compliance with Armenia's binding legal obligations as a party to
the European Convention on Human Rights (ECHR).

Background: Old Habits Die Hard
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2. (SBU) Scratch the surface of legal reform in Armenia, as in many
post-Soviet republics, and you'll find that change is often only
skin deep. The toughest change for prosecutors to accept has been
their new, and appropriate, designation as partisans in criminal
proceedings that they formerly ruled as so-called "neutral"
providers of objective truth. Thanks to Armenia's entry into the
Council of Europe and ratification of the ECHR, the new Armenian
Criminal Procedure Code (CrPC) recognizes prosecutors and their
investigators as only one side in an adversarial process that
promises equality of arms to both sides. Previously, the criminal
dossier compiled by the state - full of hearsay witness statements
and the often determinative reports of the state's forensic experts
- was all that the court needed for trial. Indeed, prosecutors
frequently didn't bother to show up for trial once the dossier had
been submitted ex parte to the judge, long before the defendant and
his counsel even made their appearances in court.


3. (SBU) The New CrPC and the availability of an appeal at the
European Court in Strasbourg was supposed to change all that. This
classically inquisitorial process, heavily dependent on the
prosecution's compilation of the dossier or case file, a Soviet
legacy, is now balanced by greater procedural guarantees of equality
for the defense. The dossier is formally recognized as the partisan
product of only one side, rather than the objective presentation of
facts and the merits of a case. Defendants can request the presence
of their own lawyer at many stages of the investigation. And the
lawyer can request that his own questions be put to experts engaged
by the state. These rights are ostensibly protected by the
opportunity for the defense to move the court for the inclusion or
exclusion of evidence in the dossier, a new expert report, and even
a change of experts.


4. (SBU) But old habits die hard. Despite changes in the CrPC and
other statutes, the dossier still holds tremendous power as the
focal point for the presentation of nearly all evidence in a trial.
"I'm your best defender," one senior criminal investigator likes to
tell defendants called to his interrogation rooms. And it is this
worldview, apparently unshaken by formal changes to the law, that
still infects the criminal process. A defense counsel's request for
a new or different expert - let alone the defendant's independent
collection of evidence - is an insult to a self-described "neutral,"
being the investigator. And an acquittal - should such an event
occur - is an earth-shattering blow to his or her sense of
professionalism. In addition to professionalism concerns, in
Armenia, as well as, in other post Soviet countries, law enforcement
(including prosecutors) are rated heavily based on how many cases
they open and close (i.e., quantity vs. quality).

Is There Such a Thing as "Free Choice"?
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5. (U) The MoJ recently sought to strengthen existing reforms by
revamping the way experts are regulated, selected, and used in
judicial proceedings. Expert reported conclusions are often given
considerable deference by the court. The MoJ started from the
premise that both sides should have equal access to, and a free
choice of, experts. So far, so good. But just what is an expert?


6. (SBU) Rather than let the market sift the good from the bad, or
rely on judges to assess the credentials and credibility of experts
presented by either party, the MoJ drafted a "Law on Forensic
Examinations." On its face, the draft law would have regulated all
of these issues. The state would license all experts and establish
an official state body to administer qualifications tests in any of
more than a score of areas of expertise, from toxicology to
ballistics to economics to copyright. Further, the state would
certify the reliability of all "methodologies" employed by all
experts. Various forms of malfeasance by experts defined in the
draft law could result in license revocation, de-qualification
proceedings, or even criminal penalties. This would only exacerbate
the already existing heavily State controlled and pro-prosecution
system, as the Armenian Criminal Procedure currently only allows the
prosecution's witness to be deemed an "expert", while the defense
can only hire a "specialist", whose reports and testimony cannot
even be considered as evidence under the current CrPC in some
circumstances. The foregoing is also arguably in contravention of
the ECHR's mandate of equality of arms.


7. (SBU) The MoJ sought guidance on this draft from the Department
of Justice Resident Legal Advisor (RLA). The RLA and Professor Kahn
advised that the draft law should not be ratified. The proposed
testing and licensing regime was not only an open invitation for
rent-seeking and corruption, it was duplicative of state licensing
for the most commonly used types of experts: medics, psychologists,
and other skilled professionals. Worse, rather than enhance
protections for the defendant's right to choose an expert, the
proposed layer of bureaucracy potentially opened a new mechanism to
disallow a defendant's preferred expert witness - revoking his
license. Deputy Minister Abovian expressed resistance to allowing
both prosecution and defense the opportunity to provide their own
witness testimony to the court, arguing that most of the Armenian
judges were not trained well enough to handle the responsibility of
determining if a witness was qualified to serve as an expert.
Therefore, he preferred a state controlled board that would provide
that function. The Resident Legal Advisor and Professor Kahn
consistently pressed the point that the judges should be trained and
that the process of deciding a qualified expert should be a public,
open-court process that allows both sides to present their expert,
rather than a behind the scenes board or individual who makes the
decision. Ultimately, the MoJ agreed.

"Without the ECHR, a lawyer isn't a lawyer."
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8. (SBU) Any attempt to remake the Armenian justice system in the
image of the American adversarial system would be doomed at the
start, and rightly so. American practices have a history and a
learning curve all their own, and are inappropriate if not refined
to accommodate the civil law system of justice and the unique
challenges posed by the legacy of the Soviet Union's adulteration of
the Continental legal tradition. Fortunately, the ECHR system
provides a series of templates - developed through 50 years of case
law produced by the Strasbourg Court - that can serve as a
persuasive guide towards a European-style merging of these
traditions with more adversarial practices and equality of arms for
both sides.


9. (U) Defense attorneys in Armenia instinctively recognize how the
ECHR mandates equality of arms in legal proceedings. "Without the
ECHR, a lawyer isn't a lawyer," said Ruben Sahakyan, head of the
Armenian Chamber of Advocates, during a meeting with the Resident
Legal Advisor and Professor Kahn on September 13, 2006. The ECHR
caselaw provides a fulcrum for the argument that defense attorneys
should have equal rights to examine experts employed by the state
and to employ their own expert witnesses. ECHR caselaw has also
been the primary catalyst for Armenian legal reform since Armenia
joined the Council of Europe and became a party to the ECHR in 2002.
To date, the Court in Strasbourg declared approximately 34 Armenian
cases admissible for a ruling on their merits. However, the trend
of increasing applications makes more acceptances imminent. In
2003, the ECHR received 89 applications from Armenian petitioners to
review alleged violations of the Convention. In 2004, petitioners
lodged 122 applications; and by 2005, the number had nearly tripled
to 340 applications.

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YEREVAN 00001419 003 OF 003


Comment
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10. (SBU) Throughout the MoJ working sessions on the draft law,
OPDAT's Resident Legal Advisor and Professor Kahn returned to
Armenia's binding legal obligations under the European Convention on
Human Rights, ECHR caselaw, the American system which embodies the
same core principles of the ECHR, and examples of how other
post-Soviet countries had adapted their traditional practices to
these European standards. This approach ultimately won the day in a
final one-on-one with the Minister of Justice. OPDAT's team
succeeded in persuading Minister Harutyunyan to scrap the draft law
on forensic examinations and retask his staff to consider
ECHR-compatible reforms that would promote equal access to expert
witnesses with less state intrusion into an inherently judicial
process of weighing evidence. The MoJ agreed that the defendant
should be able to select his own "expert" to be heard at trial and
that if a person could not afford an expert of his own, that the
State should pay for the defendant's expert. With the help of
OPDAT, the MoJ avoided a perilous misstep. Legal reform, at least
in this area, appears to be back on track and moving in the right
direction.

GODFREY