Helsinki Citizens’ Assembly-Vanadzor

During 15.04.2020 - 30.04.2020, RA draft law on making amendments to the RA Law “On treatment of arrestees and detainees” (hereinafter also referred to as Draft) was placed on the electronic platform of discussion of legal acts’ drafts. The Draft envisages to make the following amendment to Article 48 (4) of the RA Law “On treatment of arrestees and detainees” (hereinafter also referred to as the Law):

“If the body conducting the criminal proceedings has made a decision to prohibit visits to arrestees or detainees, persons envisaged by part 2 of this Article, except for cases stipulated by law, may exclusively communicate with arrestees or detainees. The communication may not be done in private. If the body conducting the criminal proceedings has made a decision to prohibit visits to arrestees or detainees, persons envisaged by part 2 of this Article, except for cases stipulated by law, may visit arrestees or detainees after applying to the body conducting the proceedings and getting a permission. The permission to visit may be refused by the reasoned decision of the body conducting the criminal proceedings”.

We find that the regulations envisaged by the Draft under discussion threaten the implementation of RA positive obligations to prevent torture and ill-treatment, as well as the commitments of the RA Government  to ensure public supervision in closed institutions. 

Thus, the Law defines a requirement of public supervision over places of arrest and places of detention, which is to be conducted by a group of public observers established by the head of the appropriate authorized body (Article 47). At the same time, Article 48 defines a list of persons who have the right of free access to places of arrest or detention without special permission. The list also includes the above-mentioned observers conducting public supervision in the relevant places.  

As a result of the suggested amendment, if the body conducting the criminal proceedings makes a decision to prohibit visits to arestees or detainees, the Law restricts, inter alia, the following rights of the public observers conducting supervision over the implementation of detention or custody: the right to communicate in private, the right to visit arrestees or detainees.

In particular, the existence of such a decision defines exclusively the right to communicate with a detainee or an arrestee, which, in its turn, cannot be done in private, and visits can be made only after applying to the body conducting the proceedings and getting a permission.  

It is obvious that the conduction of public supervision, as well as the reservation of the observers’ right of free access to places of detention and arrest, and the right of free, confidential visits to persons deprived of liberty is not a goal in itself. Establishment of public supervision over the implementation of keeping in custody or in detention, first of all, aims at the prevention and discovery of torture and ill-treatment. Thus, its nature is more proactive and its implementation cannot be dependent on getting a permission from a body in advance, which gives a real possibility to make unannounced visits and prevent torture and ill-treatment. At the same time, it is impossible to achieve those goals without confidential communication with persons held in those institutions, and without guaranteed possibility of access to other data related to them.  Therefore, the prohibition of meeting the person held in the relevant place, its dependence on a permission from the body conducting the criminal proceedings, as well as the absence of a possibility to communicate in private, preclude the possibility to get the necessary information in cases requiring an urgent response and prevent torture and ill-treatment. Moreover, public supervision becomes perfunctory and ineffective in the mentioned cases. 

It should be recorded that the changes suggested by the Draft are also justified by the condition that Law has already defined a list of persons, in case of which it is practically possible to ensure the discovery of any violation of the rights of persons deprived of liberty and implementation of steps aimed at tackling the issue. “Including the Defender and the advocate in the above-mentioned list of persons, the legislator seems to take as a basis the condition that the mentioned persons can directly (in a non-mediated manner) ensure the   further course of the alleged violation. In other words, in one case, the advocate of the person deprived of liberty, being the defender of his/her truster’s interests, is authorised by the truster to do actions aimed at the restoration of the violated rights, and in the other case, the Defender can use his/her power reserved by the constitutional law to record, via an appeal or a discussion initiated by himself/herself, violation of human rights or freedoms”.  

It should be mentioned that the above-mentioned argument is groundless and cannot be used as a basis to restrict public supervision in places of detention and arrest. Furthermore, the above-mentioned persons, too, have a mediated possibility to ensure the restoration of the violated rights of the relevant persons, as well as the prevention of torture and ill-treatment. In particular, the Human Rights Defender is to try and eliminate the recorded violation by other state competent bodies (by presenting relevant recommendations), while the advocate is to try and eliminate the recorded violation by submitting applications to the relevant bodies. 

Taking into consideration the aforementioned, as well as the need to ensure an effective public supervision in closed institutions to prevent torture and ill-treatment, we call on the RA Minister of Justice to refuse the legal regulations related to public observers and to exclude, by Law, the possibility to restrict visits of members of the public observers’ group to arrestees or detainees. 

Law Development and Protection Foundation,

Open Society Foundations - Armenia,

Helsinki Citizens’ Assembly-Vanadzor,

Protection of Rights without Borders NGO

Advocates - Robert Revazyan, Karen Tumanyan