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Legal regulations on the provision of age-based points for the early release from punishment or replacing the rest of the punishment with a lenient one must be reviewed to exclude discrimination and secure the principle of equality

January 17, 2020

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On January 16, 2020, Helsinki Citizens’ Assembly-Vanadzor applied to the RA Ministry of Justice Minister Rustam Badasyan regarding the RA Minister of Justice Minister’s order N198 dated June 4, 2019, and order N 336-L appendix 3 dated July 2018.

 

Appendix N 3 of order N 336-L sets the requirements and the standards according to which the types of punishment are replaced in accordance with the age-based points collected by the person deprived of liberty.   

 

HCA Vanadzor is concerned about the uncertainty of requirements and standards that lie in the factual discription paper of the convict’s personal case and conduct envisaged for the reports of the RA Ministry of Justice penitentiary and probation services and required for the early release of a person deprived of liberty or replacing the rest of the punishment with a milder punishment type.  

 

In particular, point 5 and point 6 of the information paper that includes the “assessment prerequisites” respectively set the same amount of points  that are given at the time of the commission of the crime and at the moment of assessment based on the convict’s age. According to the standard regarding “age at the moment of the commission of the crime”, in case of committing a crime by the age of 28, 0 point is envisaged for early release from the punishment or replacement of the rest of the punishment with a lenient punishment, 1 point is envisaged for persons aged 28-55 and 2 points are envisaged for persons older than 55. 

 

HCA Vanadzor consistently protects the interests of convicts that comprise the target group who face the problem of early release from the punishment or replacement of the rest of the punishment with a lenient one. Dealing with the above-mentioned legal regulation and based on the standards of giving points with a vague legal logic, we record approaches that are apparently opposed to the prohibition of discrimination, legal certainty and proportionality. 

 

Le us remind that Article 29 of the RA Constitution sets that “Discrimination based on sex, race, skin colour, (...) age, or other personal or social circumstances shall be prohibited”, while Article 79 sets that “When restricting basic rights and freedoms, laws must define the grounds and extent of restrictions, be sufficiently certain to enable the holders and addressees of these rights and freedoms to display appropriate conduct”. 

 

Not finding any logic as a result of the practical application of order N 336-L and its enclosed appendices, HCA Vanadzor records that by envisaging 0 point for persons who committed a crime by the age of 28 to be early conditionally released from the punishment or to have their punishment replaced with a lenient one and  giving 1 point to persons aged 28-55, the legislator obviously violates the constitutional prohibition of discrimination based on age. Just as in any legal regulation, restrictions or privileges given to certain persons are also allowable and compatible with legal logic. However, all this must fall within the principles set by law without causing discord and violations of human rights.

 

Summing up, HCA Vanadzor particularly recommends reviewing N 3 appendix of order N 336-L dated 12.07.2018 and completely abolishing point 5 and point 6 of the appendix regarding the age-based points in order to exclude age-related discrimination, unclear legal interpretation and to provide equality for everyone.  

 

Taking into account the condition that after eliminating the points regarding the acquisition of points, a problem will also arise related to collecting the minimum 28 points set, we also recommend reviewing and proportionally reducing the threshold of the points set in the appendix of order N 198-L by the RA Minister of Justice in order to make the invoked appendices in line with the RA legislation, make them stem from the principles of the legislation and not to allow for any discrimination and to create equal and fair conditions for everyone.

 

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