UNITED NATIONS. STATEMENT BY THE WORKING GROUP ON
ARBITRARY DETENTION UPON CONCLUSION OF ITS MISSION TO THE
REPUBLIC OF ARMENIA
16-09-2010 13:48:00 | Armenia | Human Rights
(6-15 SEPTEMBER 2010)
The Working Group on Arbitrary Detention of the United
Nations Human Rights Council conducted a country mission to the
Republic of Armenia from the 6h of September 2010 until today,
following an invitation from the Government. The delegation was
headed by myself, as the Working Group Chair-Rapporteur, and
composed by one of the Working GroupÄs members, Mr. Mads Andenas
and by two members of the Working GroupÄs Secretariat from the
United Nations Office at Geneva.
First of all I would like to express my gratitude to the
Government of the Republic of Armenia for its invitation and for
the full cooperation extended to the Working Group in the
conduct of its mission. During the entire visit, the Working
Group enjoyed the cooperation from the Government, including all
the authorities it met with, who provided the delegation with
all the necessary information and arranged all the meetings it
requested. The delegation was able to conduct visits to
detention facilities and to interview 153 detainees in private.
The Working Group would also like to thank the representatives
of the Armenian civil society, as well as representatives of
international organizations, particularly the United Nations
Development Programme (UNDP), for its support during the
mission.
During its fact-finding mission, the Working Group met with
high-level officials from the Executive, Legislative and
Judicial branches, including the Chairman of the Constitutional
Court; the President of the Criminal Chamber of the Court of
Cassation; the Chair of the Standing Committee on Protection of
Human Rights and Public Affairs of the National Assembly; the
Deputy Ministers of Foreign Affairs; Justice and Defence; the
Deputy Prosecutor General; the First Deputy Minister of Health;
and the Chief of Staff of the Police. It also held meetings with
the Human Rights Defender (Ombudsman); the Chair and members of
the Board of the Armenian Bar Association; with the Public
Monitoring Group of Police Detention Facilities; with the Prison
Monitoring Group under the Ministry of Justice; with magistrates
of Courts of Appeals and first instance judges, as well as with
former detainees. The Working Group also met with
representatives of the United Nations country team.
During its official mission the Working Group visited
Nubarashen Prison, Artik Correction Facility, Goris Prison,
Vardashen Prison, ÅYerevan KentronÆ Detention Facility, Erebuni
Detention Facility, the Military Police Detention Centre in
Yerevan, Abovyan Prisons for women and juveniles, the Yerevan
Reception Centre for Migrants, Sevan Psychiatric Facilities and
Vanadzor Psychiatric Facilities. The Working Group also paid two
non-announced visits to police stations at Aparan and Goris and
one to Sevan Prison. It interviewed prisoners and detainees in
private in all of these facilities. The Working Group also tried
to conduct, without success, a surprise visit to the special
accommodation facility for arrivals in an irregular situation at
the Yerevan International Airport.
The Working Group would like to highlight the efforts
carried out to reform the penal legislation, particularly the
Criminal Procedure Code, which has been amended in order to put
Armenian penal legislation in conformity with international
standards for fair trial and due process of law. More than 200
amendments have been approved by the National Assembly during
recent years. New amendments are now under consideration.
The Working Group would also highlight the efforts to
improve the physical conditions in the prisons and detention
centres it visited, and particularly the good rapport between
prisoners and detainees and penitentiary guards. During the
private interviews it held, the Working Group did not receive
any allegation of abuse of power or ill-treatment from prison
guards. Thirty-three out of forty police detention centres have
been refurbished.
In addition, the Working Group was pleased to learn that
detention centres and prisons are visited and monitored, on a
permanent basis, by two different groups composed of
non-governmental organization representatives: The Public
Monitoring Group of Police detention facilities and the Prison
Monitoring Group under the Ministry of Justice.
Furthermore, the Working Group welcomes the work carried
out by the Constitutional Court and the possibility that any
citizen may have direct access to the Court. During the months
elapsed of 2010, the Constitutional Court has received 354
constitutional recourses and complaints. The Working Group also
commends the work being carried out by the Human Rights Defender
(Ombudsman) who received and processed 5,200 complaints during
2009, and whose Office conducts regular and ad hoc monitoring of
detention centers and prisons. The Working Group has taken note
of the jurisprudence of the Constitutional Court and of the
Supreme Court of Cassation giving effect to due process
requirements based on international human rights law and
national constitutional law and principles.
During the mission, the Working Group received information
that two persons died in detention while in police custody.
According to the information received, they committed suicide.
However, the Working Group considers that investigations by
external, independent bodies are necessary, and inquests should
be conducted on each case as soon the death takes places.
At some prisons, the Working Group found overcrowding, poor
sanitation, minimal medical care and a lack of sufficient
ventilation. The Government must guarantee the right to safety
of all prisoners. Overcrowding seems to facilitate corruption
in prison in several ways, including payment for moving to less
overpopulated cells.
One main issue of concern to the Working Group is the lack
of internal independence of the Judiciary. This affects the
right to liberty of any citizen. It is not primarily lack of
independence following from interference from branches of the
State, but it is an absence of the necessary independence in the
actions of magistrates and judges. They have the high
responsibility of administrating Justice. To reach that noble
objective, they must demonstrate that they are independent and
impartial, giving the same rights and obligations to the
different parties in the process and guaranteeing a fair trial,
the due process of law and the rights of the accused.
The principle of equality of arms between accusation and
defence is one of the basic prerequisites of a fair trial.
Magistrates and judges as a rule grant the requests from the
prosecutor, and rarely those coming from the defense. Most of
jurists interviewed, are of the view that sentences and other
judicial decisions too closely follow the criteria imposed by
the Prosecutors. Also some convicted prisoners were of the view
that the judge had not acted as an independent and impartial
authority but as a legal official at the same level, or even at
an inferior level, than that of the Prosecutor.
This has been aggravated by the fight against corruption
currently carried out by the Government. Magistrates and judges
seem to be self-limiting themselves in the application of
justice, ordering harder penalties in fear of being perceived as
not sufficiently firm in combating corruption, or, of being
complicit in corruption. The form of judgments is another issue
where the view is that most sentences and judicial resolutions
are not sufficiently motivated. We are aware that the Supreme
Cassation Court in a series of judgments has laid down
requirements to the reasons to be given in judgments, and that
this field of law is developing in order to satisfy
international human rights standards and due process
requirements.
It was alleged that Prosecutors are more defenders of the
State than defenders of society and of the law, following a
principle of presumption of guilt, instead of a presumption of
innocence. The courts are perceived more as a rubber stamp for
the Prosecutor than as a defender of citizensÄ rights or due
process guarantees. Prosecutors greatly overshadow defense
lawyers during trials. This also seriously affects the legal
profession. Many detainees interviewed stated that they have no
need for the services of a defense lawyer because their services
are, at the end of the day, not useful. These detainees maintain
that it is more important to have good relations with
investigators and prosecutors. Many detainees in remand did
recognise the importance or the concrete benefits of having a
defense lawyer The lack of confidence may yet be worse in the
case of public defenders. Although the Government has made
serious efforts to guarantee legal counsel at public expense to
defendants who otherwise cannot afford this, many detainees
stated that they perceived public defenders as colleagues and
friends of prosecutors and they may even be colluding with them.
This was one reason given by many defendants why they had
preferred to argue their own case in court.
The Working Group considers it to be an important point to
be made that if the principle of equality of arms between
prosecution and defense is not fully observed and guaranteed by
the judge, justice can not been rendered.
Convicted prisoners reported to the Working Group that the
evidence submitted on their behalf was not admitted or processed
and judges had not called defence witnesses. In addition to
this, defence lawyers had difficulties in accessing the trial
files. The Working Group recalls that detainees have the right
to a fair and public hearing by an independent and impartial
judicial authority, as stated in the Universal Declaration of
Human Rights, the Covenant of Civil and Political Rights and
principles of international customary law
The Working Group also notes that excessive powers
attributed to the police, to the National Security Services and
to the Border Guards facilitate the arrest and detention of many
individuals without an arrest warrant issued by a judicial
authority. Arrests are often not a consequence of a preceding
police investigation but people are detained in order to be
investigated. This affects not only the rights to personal
freedom, free trial and presumption of innocence, but also the
right to the security of person.
The Working Group was informed that arrest and detention
are used to prevent a suspect from fleeing, destroying evidence
or preventing him or her from committing a future offence. The
Working Group observed that people are maintained in Police
stations for a time superior to the three hours established by
the law. However, the norm which establishes that suspects may
be held up to 72 hours without charge in pre-trial police
detention facilities is generally respected and followed in
practice, After 72 hours of detention, a great majority of
people are either indicted or released.
The practice of inviting people to present themselves to
the police stations as witnesses was criticised. Material
witnesses do not have the right to prompt judicial determination
or legal counsel. Sometimes police officers maintain these
persons beyond 72 hours and later change their status from
witnesses to suspects.
The norm which establishes that nobody can be held in
pre-trial detention awaiting trial, for more than 12 months is
also usually respected. The problem arrives when the trial
begins, given that there are no established time limits for its
conclusion. It was alleged that prosecutors regularly request
and receive from judges, trial postponements on the ground that
they require more time to prepare for trial. Postponements are
used as an excuse to prolong investigations. On the other hand
prosecutors claimed that the responsibility for the postponement
of trials belong to the defence lawyers, because they usually
argue that they need more time to prepare their defence.
The Working Group notes that the ratio in prisons between
people in pre-trial detention and those convicted seems
proportional and adequate, with approximately a fourth of
detainees on remand.
Many detainees and prisoners interviewed by the Working
Group denounced having been subjected to ill-treatment and
beatings at police stations. Police and National Security
investigators use pressure, including ill-treatment, to obtain
confessions, as a central part of their investigations. They
further denounced that prosecutors and judges refused to admit
evidence of ill treatment into court proceedings. Many cases of
beatings during arrest and interrogation while in detention were
not reported because of fear of retribution. Interviews and
meetings with NGOs and legal professionals provide further
support for these assessments.
Although the law provides for a bail system, the Working
Group understands that this is not sufficiently applied in
practice. Prisoners are thus required to serve the totality of
their sentences, even when the law provides for the possibility
of conditional release. This has consequences not solely in the
overcrowding of prisons, but also affects the penitentiary
regime given that prisoners are deprived of an element of
motivation to observe good behaviour while in prison, as well of
the possibility to advance the process of reintegration into
society.
The Working Group also reviewed the situation of 13 persons
detained in relation with political demonstrations, particularly
the demonstration which took place in March 2008. The Group was
able to hold interviews with four of them in different prisons.
The Group observes that the Government is granting asylum
and refugee status in accordance with the 1951 United Nations
Convention relating to the Status of Refugees and its 1967
Protocol. The Government is also providing temporary protection
to individuals who may not qualify as refugees. The Working
Group visited an open centre in Yerevan in which asylum-seekers
and people demanding a refugee status are kept in adequate
conditions, being free to go outside during the day hours. They
are kept there during the whole duration of their legal
procedures.
Illegal crossing of the border is considered a penal
offense. Arrivals in an irregular situation, such as people
entering the Armenian territory without the necessary entry
visa, or those who overstay beyond the date of its expiry, are
usually subjected to a fine and deported from the country, with
prohibition to return to the country during a determined period.
The Working Group has noted concerns about the opportunity to
claim asylum when refugees are turned away at the border. There
are further concerns about the treatment of border crossing as a
criminal offence in this context.
The Working Group would like to make the following
recommendations.
Law and practice on remand, in sentencing and by not
granting release have extended detention beyond the
proportionate level. Law reform and change in court and
administrative practice are required. The criteria for granting
bail or remanding suspects in detention require tightening up
with concomitant changes in practice.
Violence during arrest and interrogation require particular
attention. Criminal procedure reform may limit the practice of
invitation to police interviews without the rights of a suspect,
and there is need for training of police staff to improve
practice.
The rights of refugees and other migrants must be better
protected, in particular by allowing procedures of review before
individuals are turned away at the border and returned to the
other side of the border.
These are our preliminary observations at the end of our
visit. A final report on the visit will be presented to the
Human Rights Council in March 2011.