How Old Courts Derail New Democracies. Anna Ohanyan

Below you will find EPF Board member Anna Ohanyan's article published in 


How Old Courts Derail New Democracies

For the nations in Russia’s orbit, holdouts in the judicial system are an Achilles’ heel.

Since the Soviet Union’s collapse, Russia has used an impressively broad variety of tactics in its attempts to manage its neighborhood. In Ukraine and Georgia, the approach has been military, while in Moldova, Armenia, and the Balkans, it has channeled its power largely through illiberal elites in the judiciary, legislature, and media. Whether by jets or through judges, the Kremlin’s influence in these emerging democracies has been substantial, weakening their institutions and rendering them even more vulnerable to political manipulation.

For example, in Armenia, where a democratic transition last year brought to power a popularly backed government, the Kremlin is still exploiting institutional instability and uncertainty. A particular focus appears to be the Armenian judiciary, which still includes holdovers from the previous pro-Russian government.

The tensions most recently spilled over last month, when the prerevolutionary justice minister, Arpine Hovhannisyan, leaked a confidential report on vetting new judges, including for the Constitutional Court. The leaked document also appeared to be critical of the current government’s proposed reforms to the process for nominating and appointing new judges. Loyalists of the former regime have criticized such efforts as attempts by the executive to control the courts.

Another consistent source of pressure from the judiciary is the handling of the case against a former president—and an ally of Russian President Vladimir Putin—Robert Kocharyan. Kocharyan has been accused of violating the constitution and ordering the army to suppress protests in the aftermath of the 2008 presidential vote, a disputed election that handed victory to Kocharyan’s hand-picked successor, Serzh Sargsyan.

Along with Kocharyan, Yuri Khachaturov, formerly the secretary-general of the Collective Security Treaty Organization, a Russia-led regional organization, is also charged in the affair. Kocharyan’s case has been referred to Armenia’s Constitutional Court, which has been asked to decide whether the former president enjoys constitutional immunity from prosecution. Judge Davit Grigoryan, a figure from the old government, has suggested that Kocharyan should enjoy immunity and has ordered the release of the ex-president from jail, pending the verdict in the case. The decision was appealed shortly thereafter.

Establishing judicial independence after democratic transitions has proved challenging in the post-Soviet world. Courts have either become conduits for reformers to consolidate their newfound power—sometimes to the detriment of democracy—as in Georgia and Ukraine, or they have become a final garrison for authoritarian forces, as appears to be the case in Armenia. In both cases, true judicial independence is unattainable.

Legally confronting a society’s authoritarian past is often one of the first things a new democratic government will want to do. The options span criminal prosecution, truth commissions, judicial reform, reparations, and lustration of police and security forces. Between 1990 and 2008, the most recent figures available, there were 34 prosecutions of heads of state for human rights violations; the number was much higher for lower-ranking officials. These prosecutions have been described as a “justice cascade” and “revolutions in accountability.”

Yet, the experience in the post-Soviet space has been different. Former presidents of post-Soviet states have avoided persecution for their wrongdoings while in office, often by fleeing to Russia, where they were granted asylum.Former presidents of post-Soviet states have avoided persecution for their wrongdoings while in office, often by fleeing to Russia, where they were granted asylum. This made Kocharyan’s case unprecedented in the region when it started.

As I wrote last year for Foreign Policy, Armenia’s Velvet Revolution succeeded partly because of its strategy of remaining within the bounds of a constitutional order, however flawed, established by the former authoritarian regime. That strategy, although it peacefully dislodged a hybrid authoritarian regime, may be becoming a liability. An unreformed holdover judiciary has the capacity to derail substantially all reforms and anti-corruption initiatives formulated by the parliament.

And it is this unreformed judiciary that is charged with handling Kocharyan’s case. Prime Minister Nikol Pashinyan regularly highlights that the judges dominating the judiciary are products of the previous regime, calling for transitional justice to reform the system. Instead, the ex-president Kocharyan and his legal team have described the prosecution as a political vendetta by Pashinyan.