“While administering Juvenile Justice it is important that juveniles are not involved in criminal proceedings and alternative measures should be enforced, the justice should move from penal to restorative functions. The work with juveniles should include psychologists, social workers”, believes Regional Director of the organization “Penal Reform International” Tsira Chanturia.
There is a need for reforms in the juvenile justice system of Armenia and it should be brought in conformity with the international standards. This opinion was expressed by the Penal Reform International and Civil Society Institute at the discussion “Administration of Justice in juvenile cases in the Armenian legislation” which took place on July 3.
Civil Society Institute NGO President Arman Danielyan noticed that the juvenile justice issues are becoming urgent thus it will be easier and more effective to begin the reforms now while the number of juvenile convicts is not high (20-30 people).
The organizations will submit the suggestions to the Working Group of the Draft RA Criminal Procedure Code.
The issues of Juvenile Justice System
According to the observations of the CSI expert Siranush Sahakyan, the peculiarities of the juveniles are not totally disregarded in the Armenian legislation. However, in her opinion, the sanctions adapted for juveniles do not exist in Armenia.
“Criminal Code and Criminal Procedure Code impose the obligation upon the body of criminal proceedings to take into consideration some peculiarities while administering Juvenile Justice. However, generally the approach is reduced sentences or enforcement of certain privileges”, notices Siranush Sahakyan.
According to Siranush Sahakyan, fines and public works imposed upon juveniles as an alternative sentence cannot be effective because the RA Labour Code restricts the work of juveniles and the juvenile has no means to pay the fine and this burden is put on parents or others. The expert suggests extending the list of alternative sentences and providing sentences which are adapted to needs of juveniles.
The absence of community based programs to substitute the criminal liability is an issue. “There are community-based restorative centers which are actually thesubstitutes but there is a lack of legal regulation: it is not clear the principles and which group of young offenders are sent to the community-based centers by the Police”, says Siranush Sahakyan.
The expert also highlights the issue of professional skills’ improvement among the bodies working with juveniles (investigators, prosecutors, judges). This is easier to achieve compared to the creation of specialized courts dealing with juvenile cases.
Siranush Sahakyan suggests that along with the defense attorney and the legal representative, participation of a psychologist, social worker or another trained professional in the cases where juvenile defendants are involved should be mandatory. She also stresses out that the involved educator should not be the one who works with the child directly. She also suggests making mandatory participation of the defense attorney during the interrogations of juvenile witnesses and victims.
Director of the FAR Children’s Support Center Mira Antonyan offers to apply the method of one-side mirror while interrogating the victims (particularly victims of sexual abuse), so that they do not tell their story several times.
Although CSI expert Siranush Sahkyan realizes the importance of the psychologists’ participation in the preliminary investigations, she stressed out that the risk of extortion of self-incriminating evidence by the professional manipulation should be eliminated.
From the perspective of the protection of juvenile defendant’s privacy, CSI expert believes that the hearing should be conducted behind closed doors if there are no sufficient grounds to do otherwise.
Recommendations of the UNICEF
UNICEF expert, Civil Society Institute NGO lawyer Tatevik Gharibyan presented the UNICEF recommendations on the draft of the RA Criminal Procedure Code.
The expert recommends that the length of arrest (police custody) should be reduced from 72 hours to 48 for juveniles, arrestee should be immediately informed about one’s rights and responsibilities (merit of the accusation, right to remain silent which should not be interpreted in a way that may harm the arrestee, access to lawyer and the right to be interrogated in the presence of the legal representative)in his/her mother tongue or other language he/she is fluent verbally and in written form.
The next UN recommendation concerns the detention. Tatevik Gharibyan stresses out that the length of the detention as a measure of restraint should be limited to 6 months which could be extended only in exceptional cases. In her opinion, at the stage of judicial proceeding there should be a possibility for restriction and revision of the terms of detention which is not provided in existing law. “We recommend including a mandatory provision which will grant the possibility to review the decision on preliminary detention in the juveniles' cases regularly, for example every 14-24 days”.
Mandatory participation of a psychologist along with the educator during the interrogation and other investigative actions with involvement of underage witnesses and victims is in the list of recommendations. Tatevik Gharibyan says that the underage witness and victim also should be explained about their rights in an accessible manner, including the right to have a lawyer and legal representative. Socially vulnerable juveniles involved as witness or victim should be entitled to free legal aid if they wish so.
Draft Criminal Procedure Code
Lawyer Hrayr Ghukasyan who leads the Working group of the draft Criminal Procedure Code presented the reforms and changes concerning the order of judicial proceedings of juvenile cases.
He stressed out that the existing Code is too general and although formally there is a section on juveniles, it does not provide specialized approach to juveniles based on their age peculiarities.
The new Code provides a differential proceeding for juvenile defendants but this will not concern juvenile victims and witnesses.
Hrayr Ghukasyan stressed out that the juvenile cases should be examined separately even if there are adults involved. If this is not possible in the interests of justice, a differentiatedapproach should be applied to the involved juvenile. The examination of these cases should be possibly rapid.
Participation of a defense attorney in the proceedings of juvenile cases will be mandatory from the very moment of arrest even if the juvenile refuses to have an attorney. The refusal will be accepted only if the there is a problem with the person who is going to be involved as a defense attorney and the defendant or his/her legal representative wants to have another attorney.
Participation of the legal representative in the proceeding will be mandatory as well. However, the law grants the possibility to exclude the legal representative from the proceeding and replace him/her with another one if he/ she exceed its powers and has a negative impact on a juvenile.
In Hrayr Ghukasyan's opinion, in the proceedings of the cases of juveniles under age of 16 participation of the trained psychologist along with the defense attorney will be preferable to the involvement of the educator.
The Working group accepts the restriction of the 48 hours as the maximum length of arrest and 6 months as a maximum length of pre-trial detention.However, there are problems concerning the limitations of the maximum lengths of detention at the court examination stage.
“During the preliminary investigation in juvenile cases the term for revision of the detention should be reduced and be less than 2 months. The length of interrogation should not exceed two hours and during a day it should not last more than four hours. Defense attorney should be present during the interrogation and participation of the legal representative may be optional”, these are the most important amendments to the Code according to Hrayr Ghukasyan.
Another essential amendmentis possibility to interrogate any expert who gave a conclusion, including the investigators, who according to Hrayr Ghukasyan, seems “to have the immunity against interrogation”.
Director of the organization “Project Harmony” which implements the programme of Community Justice Centers Mariam Martirosyan spoke about the mediation. Hrayr Ghukasyan stressed out that this field is not fully explored in Armenia and there are no clear results on how it works. Thus, they do not want to introduce the mediation in order to avoid devaluation and distortion of this institution.
President of «Trtu» NGO Temik Khalapyan asked about the modern technologies used during thecourt examination, particularly he was interested in interrogation through telecommunication. Hrayr Ghukasyan mentioned that the new Code provides possibility for distant interrogation only in exceptional cases when the person to be questioned is far and cannot come to the court.
The Project on Draft Criminal Procedure Code will be finalized in September. Head of the Working Group believes that the new Code will be presented to the RA Government discussion this fall and it will be submitted to the National Assembly next year.
Since 2011, Penal Reform International organization in cooperation with the NGO Civil Society Institute and FAR Children’s Support Center implements the project “Promotion of the Modern concepts inthe administration of Juvenile Justice in Armenia”