VZCZCXRO0851
RR RUEHAG RUEHAST RUEHDA RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA RUEHLN
RUEHLZ RUEHPOD RUEHROV RUEHSR RUEHVK RUEHYG
DE RUEHYE #0551/01 1891111
ZNR UUUUU ZZH
R 071111Z JUL 08
FM AMEMBASSY YEREVAN
TO RUEAWJA/DEPT OF JUSTICE WASHDC
INFO RUEHC/SECSTATE WASHDC 7773
RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHLMC/MILLENNIUM CHALLENGE CORPORATION WASHINGTON DC
RHEHNSC/NSC WASHDC

UNCLAS SECTION 01 OF 03 YEREVAN 000551 
 
SENSITIVE 
 
SIPDIS 
 
STATE FOR INL/AAE Judith Campbell 
DOJ for Carl Alexandre and DOJ/OPDAT, 
Christopher Lehmann, Catherine Newcombe, Sheila Phillips and 
DOJ/USDOJ, and Bruce Swartz and CRIM/AAG 
 
E.O. 12958: N/A 
TAGS: PHUM PGOV PREL KDEM KJUS AM
SUBJECT: DOJ HOLDS TOPICAL CRIMINAL LAW SEMINAR IN ARMENIA 
 
YEREVAN 00000551  001.2 OF 003 
 
 
(U) Sensitive but unclassified.  Please protect accordingly. 
 
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SUMMARY 
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¶1. (SBU) The Armenian criminal justice system is in need of 
virtually a complete overhaul, as it is institutionally corrupt, 
with almost no rights being afforded to suspects or defendants. 
Moreover, the situation has grown worse since March 1 as the 
presidential authorities have gone after political opponents on 
trumped-up charges.  To help Armenian law professionals better 
understand the rights and responsibilities inherent in a properly 
functioning judicial system, the U.S. Department of Justice / Office 
of Overseas Prosecutorial Development, Assistance and Training 
(OPDAT) held a comprehensive seminar on "Contemporary Issues in 
Armenian Criminal Law" on June 14-15, 2008.  Held in Yerevan, 
Armenia, the seminar was attended by sixty-five Armenian judges, 
prosecutors, defense attorneys and police inspectors who were 
provided a comprehensive review of Armenian jurisprudence and 
practices, with comparisons to the American experience and the 
requirements of the European Convention on Human Rights.  END 
SUMMARY 
 
--------------------------------------------- 
A HORNET'S NEST OF LEGAL AND POLITICAL ISSUES 
--------------------------------------------- 
 
¶2. (SBU) Armenia's criminal justice system faces a thicket of legal, 
political and cultural issues as it moves slowly away from its 
Soviet roots.  The system, while arguably functional, is essentially 
dishonest at its core.  The Procuracy (prosecution service) 
maintains its effective control over both judges and defense 
attorneys, and almost every case ends in a conviction.  The judges 
face removal from office or other retribution should they return an 
acquittal verdict.  The defense attorneys are starting to challenge 
the authorities, thus far with little success.  They too, however, 
can face retribution in the form of disbarment or criminal charges 
should they win a case or otherwise become too zealous in asserting 
their client's rights.  The Presidency maintains control over the 
judges by keeping salaries low; although some judges are honest, 
many judges at all levels accept bribes.  Judicial appointments are 
often obtained by payments, as they 
are money-making positions.  Should any judge buck the Presidency, 
he would be removed based upon some alleged abuse of office. 
 
¶3. (SBU) Moreover, in practice the Armenian criminal justice system 
affords little in the way of adversarial rights.  Although the law 
affords defense counsel the right to participate in police 
investigations, such participation is often minimal and of no 
significant value.  Discovery, in the form of the police case file, 
is provided to defense counsel, but this is often at the conclusion 
of the investigation.  Moreover, when defense attorneys are 
permitted to ask questions they must often do so by submitting the 
questions in writing, in the hope the investigator may choose to 
pose the questions to a witness.  Thus, there is minimal substantive 
confrontation during the investigation phase.  When the police need 
an attorney to represent a suspect they often turn to "pocket 
attorneys," who are careful not to press their client's rights too 
far, so that they will receive further references from the police. 
Thus, the factual inquiry is left in the hands of the investigator, 
with very little influence from defense counsel.  The underlying 
concept is that only those whom the facts prove are guilty will ever 
be brought to trial. 
 
¶4. (SBU) At trial, the rights of the defense are even more limited, 
as the whole point of the trial seemingly is to verify the 
investigationand pass judgment on the defendant.  In one recent 
noteworthy case of a political opposition figure, the defense 
attorney asked to call as a witness a former Deputy Prosecutor 
General who had also been arrested at the time of the defendant's 
own arrest.  The trial prosecutor successfully opposed the motion, 
saying that it was not necessary to call that witness as the 
defendant's guilt would be proven by other witnesses.  Thus, there 
is a built in assumption that the only witnesses who need to be 
called are those who will confirm the defendant's guilt. 
 
¶5. (SBU) Furthermore, although the Armenian Criminal Procedure Code, 
Article 105, states that force, fraud, 
threats, or other illegal action cannot be used to obtain evidence, 
the defense has no opportunity to challenge police investigation 
techniques because police officers are rarely called to testify. 
Police reports are received in evidence as self-authenticating 
 
YEREVAN 00000551  002.2 OF 003 
 
 
documents, with no police testimony concerning the substance of the 
investigation.  In other words, a written police report is 
considered unimpeachable evidence in its own right, not subject to 
challenge or cross-examination.  The defense has no opportunity at 
trial to challenge either the lawfulness of the police investigation 
or the facts of the case. 
 
---------------------------------------- 
USDOJ / OPDAT STEPS INTO THE BRIAR PATCH 
---------------------------------------- 
 
¶6. (SBU) Given this cornucopia of corruption, the INL-funded 
Resident Legal Adviser (RLA; USDOJ/OPDAT program) has worked in a 
variety of ways to raise the consciousness of prosecutors and judges 
as to the dishonesty, unfairness, and imbalance of the Armenian 
criminal justice system.  In December 2007 and February 2008, OPDAT 
conducted two seminars for prosecutors to raise their awareness 
about their ethical and human 
rights responsibilities, as well as to advance their trial advocacy 
skills.  The RLA has also met with numerous judges, prosecutors, 
members of parliament, and defense attorneys for informal 
discussions of how the criminal justice system should be reformed. 
OPDAT has submitted draft legislation to key leaders that would 
eliminate corruption incentives, and the RLA has proposed numerous 
procedural reforms.  For example, OPDAT proposed increasing 
penalties for perjury, a standardization of sentences, authorization 
of cooperation agreements to attack organized crime, and 
strengthening a suspect's right to defense counsel.  In this effort 
the RLA has provided the Armenians with legislation from the Baltic 
states, Eastern European countries, and Russia.  OPDAT has also 
provided more specialized training to prosecutors on money 
laundering in an effort to counter international financial crime. 
Furthermore, the RLA has reached out directly to the citizens of 
Armenia, speaking at several law schools and at the U.S. 
Embassy-supported "American Corners" located throughout the 
country. 
 
-------------------------- 
BRINGING EVERYONE TOGETHER 
-------------------------- 
 
¶7. (U) OPDAT's most recent training was its most ambitious and most 
successful. On June 14-15, the RLA led a comprehensive seminar on 
"Contemporary Issues in Armenian Criminal Law" in Yerevan for 
sixty-five Armenian judges, prosecutors, police inspectors and 
defense attorneys.  In addition to the RLA, the trainers at the 
program were Delaware First Deputy Attorney General Richard Gebelein 
and the American Bar Association's Kregg Halstead.  Mr. Gebelein has 
had extensive domestic and international experience, having served 
as Attorney General of Delaware, a judge of the Delaware Superior 
Court, and Chief Deputy Public Defender of Delaware.  He also has 
served as an International Judge of the State Court of Bosnia and 
Herzegovina and the U.S. Army Rule of Law Officer for Coalition 
Forces in Afghanistan. 
 
¶8. (SBU) The seminar consisted of a two-day review of Armenian 
jurisprudence and practices, with comparisons to the American 
experience, European practice, and the requirements of the European 
Convention on Human Rights.  Training focused on how the defense in 
Armenian practice has minimal opportunity to confront or 
cross-examine witnesses, and how Armenian police cannot be 
challenged in court.  The participants also discussed how pre-trial 
statements can be wholly relied upon in Armenia to sustain guilty 
verdicts, notwithstanding that the witness may have disavowed 
his/her previous statement or fled the country before trial.  Also 
under discussion was the very meaning of an acquittal and how 
acquittals are viewed differently in the United States and Armenia. 
Significantly, the seminar reviewed the case law of the European 
Court of Human Rights, which Armenia must follow, to show how 
Armenian practices were in non-compliance with the ECHR. 
 
¶9. (SBU) The participants explored issues related to plea bargains 
and cooperation agreements.  Armenia has a limited version of plea 
bargaining, called "expedited proceeding," which allows the court to 
accept a guilty plea and forego a trial. In all other cases the 
court holds a trial, regardless of whether the plea is guilty or 
not-guilty.  The Armenians were very skeptical of American plea 
bargaining and cooperation agreements.  They felt human rights 
violations abounded -- it was wrong for the prosecutor to make a 
deal with a criminal, it was unfair to the victim, and unfair for 
those who would then be accused as part of a cooperation agreement. 
Moreover, they felt such agreements would be a green light for 
corruption if Armenian prosecutors could exercise such discretion. 
 
YEREVAN 00000551  003.2 OF 003 
 
 
(COMMENT:  Of course, in practice, the Armenian system is far more 
rife with abuses, corruption, and heavy-handed manipulation, and 
offers defendants few real protections.  However, these participants 
are perhaps not being willfully combative in their reactions.  They 
have been deeply steeped in the Soviet-legacy system in which the 
formal rules are supremely idealistic and theoretical, while actual 
practice is disconnected from the high-minded precepts.  END 
COMMENT) 
 
¶10. (SBU) In addition, the discussion focused on particular local 
practices.  For example, in Armenia, as is quite common in Europe, 
the defendant has a "right to lie" as long as he does not falsely 
implicate another person.  The RLA explained that from an 
Anglo-American Common Law perspective, this well-established 
right-to-lie in reality actually takes something away from the 
defendant -- the presumption of innocence. In Armenia, such a 
practice compounds the burden placed on the defense and the 
defendant, as there already exists a strong presumption of guilt 
present at every trial. 
 
-----------CONCLUSIONS 
----------- 
 
¶11. (SBU) The USDOJ/OPDAT seminar was successful in laying bare the 
fundamentally different philosophies and assumptions between 
Armenian practice and that of the United States.  Armenians tend to 
accept authority without question, so it is natural for them to base 
a conviction on a police report that cannot be challenged.  The 
seminar noted that the United States was founded on a mistrust of 
authority, and many of our legal institutions reflect this 
heritage. 
 
¶12. (SBU) The conference was also successful in providing a forum 
for the Armenian practitioners to informally speak with each other 
and air their grievances.  The parties rarely have such a forum, and 
institutionally they frequently are pitted against each other. 
 
¶13. (SBU) Furthermore, it was criticalto introduce Armenian judges, 
prosecutors, defense attorneys and police to American jurisprudence, 
considering they are wholly unfamiliar with even the most basic 
practices, such as allowing defense counsel to ask questions. 
Moreover, the conference did not rely solely on the American 
experience, as there was a continuing reference to the decisions of 
the European Court of Human Rights.  This interaction with both 
American law and the European Convention on Human Rights is of 
crucial importance, asArmenia's legislators and practitioners 
rewrite their criminal procedure code and explore which aspects of 
Western practices they should incorporate. 
 
PENNINGTON