Point of View

The new draft code envisages to reduce the practice of application of arrest in Armenia

04.02.2013

A new draft  Criminal Procedure Code of Armenia significantly differs from the current one. This opinion is shared by the members of the working group, which has drafted the new Criminal Procedure Code.

On 1 February 2013 Cooperation for Open Society Initiative organized a discussion on the new draft.

According to the head of the working group Hrayr Ghukasyan, the group has been working on the document for about two and a half years and they present a draft, which drastically differs from the current law not only by its structure but also by its ideology.

The authors of the draft Criminal Procedure Code are convinced that the need for new legislation was pressing. In 1999, the Code was already outdated and not able to solve issues in the legal system.

As Hrayr Ghukasyan says, the new draft Code was created following research of the judicial practice, and taking into account the requirements of the European Convention on Human Rights and practice of the European Court on Human Rights.

Let us remind that recently the draft was presented to the government. After its approval it will be submitted to the National Assembly. The head of the working group, however, emphasizes that they aim to collect concerns and suggestions during this discussion for further improvement of the draft.

Professional opinions on the draft Criminal Procedure Code

Hrayr Ghukasyan, Head of the working group on the draft Criminal Procedure Code

–The new draft Code differs from the current one fundamentally and principally in terms of  its philosophy, ideology, regulatory system, goals and structure. And there is one goal: to have a comprehensive legal act, which would provide for effective investigation of criminal cases, and at the same time, for protection of rights and fundamental freedoms of a person.

In this context, the overall goal was to balance the protection of public and private interests in the field of criminal justice.

-Which are the principal differences between the draft and the current law?

Firstly, it’s so called optimization of procedure: the new code aims to reach the most effectiveness of the process of investigation of criminal cases, even by means of skipping some stages of the procedure.

Secondly, additional guarantees for protection of rights of a person are introduced into the sphere of criminal procedure. Here we talk about the accused, their lawyers, as well as victims and witnesses, i.e. the subjects who are vulnerable under the current legislation and very often experience unjustified limitation of their rights.

The new code shall try to increase independence of the judiciary in the criminal procedure, and emphasize and promote its role.

Finally, the code suggests principally new solutions for the measures of restraint, such as arrest and detention. Arrest becomes measures of restraint, which is characterized as a limitation of the right of a person to freedom. The regulations, we believe, will stop the widespread practice of summoning to the police by force or invitation, which is in fact deprivation of liberty.

As for detention, it should be used only in extreme situations, as a preventive measure; other alternative means should be used as preventive measures. This, we believe, shall give an opportunity to significantly decrease the practice of using detention in Armenia.

Gagik Ghazinyan, Dean, Law Faculty of the Yerevan State University

-This is the first key legislative act that corresponds to a sound logic. In respect to the code, interest of many parties clash: the state, society, person, law enforcement bodies. And in this framework, such a law should be created, which will not cause issues when the interests clash.

Definitely, there is also an issue of whether the society is ready for these reforms. It is more important for me to see that the law be implemented in practice than whether it is perfect or not. It is obvious that there could be an imperfect law with perfect implementation and the most perfect law, which has shortages in implementation or is not implemented at all. There are two reasons for non-implementation of the law: law enforcement bodies understand provisions of the law but do not implement them, or they do not understand, do not perceive and because of it do not implement; thus, there is an issue of professional qualification.

It is very important for me that the code be perfect, and most importantly, that a mechanism be created for the law to become operational. This code is considered as a mid-term phase, which means that with this code we lay basis for reaching a special criminal procedure, which is typical for a democratic country. The language of the code is also very important, that it can be understood, the style is laconic, but the issue of perception should be also properly addressed.

Hayk Aloumyan, Council Member of the Armenian Bar Association

-The draft law, certainly, introduced many positive reforms, but I would reflect on its biggest defect. I am talking about Article 116 of the draft code, which in this edition is just unacceptable for me. According to it, a person can be put in detention for a month just because he is suspected of committing a grave or extremely grave crime. And the court can provide no basis for its decision on detention, and just state that there is a sound suspicion against the persons or a person accused in committing of the crime.

The working group members say that this Article does not contradict the European Convention, but I believe that it is not a good argument. We have other articles, which do not contradict the convention, but they become a headache for us. We should not forget that the convention defines only the basic principles.

Let us start with the point that one of the goals of the new draft code is to bring the public and private interest into a balance. In our current law we see that this balance is violated to the benefit of the public interest. And the aim of the new code is to correct this imbalance. But as we could see on the example I mentioned, the private interest is lessened in favor to public interest. I do not see a sound explanation to the reason that in circumstances of such a lack of balance we should increase this imbalance.

Artak Zeynalyan, President of the “Rule of right” NGO

-After the draft was completed, the European Court on Human Rights made several decisions against the Republic of Armenia, in which it documented violations, and contradiction of the Criminal Procedure Code to the European Convention on Human Rights. In particular, some formulations were given regarding Zhirayr Sefelyan's case. I wish these would be included in the draft. Among others, the European Court documented serious violations in regard to decisions on selection of preventive measures.

Arthur Sakounts, President of Helsinki Citizens' Assembly Vanadzor office

-My concern relates to the institute of involvement of identifying witnesses. A strict mechanism shall be introduced that the same identifying witness or a team of identifying witnesses be not involved in different criminal cases.

I believe that here we need to adopt the American model of jury, and it should be stipulated in the law, or maybe in a governmental decision. For instance, it should be organized on a principle of selection, as civic participation as an identifying witness is an important institute for justice. Thus, the law should define a procedure to prevent any violations in this matter.

My second concern is that if, for example, I am invited as a witness to Goris or Yerevan police, so I need clear answers to the question of who will pay for the travel costs, because the current definition is vague. The costs of travel and meals should be defined clearly.

Lousine Minasyan, lawyer

-I will focus on three questions, which create lots of difficulties for the lawyers' work.

My first concern is that neither in the current law nor in the draft there is a provision which envisages for a lawyer or representative of the victim to have copies of documents. These persons have a right to become familiar with documents and take notes, but not to receive copies of documents. And the bodies dealing with preliminary investigation, if they want, they say: “you know there is no provision mentioning that you have a right to receive documents”. So very often we have to use other techniques: take notes, photos etc.

The second concern relates to recording of testimonies, especially, the testimonies of witnesses from the accusation side. Thus, the investigator asks a question, and the interviewer replies, and then they begin taking notes of his answers. And always the summary is written down in a way, which harms the accused. And if we had an opportunity to record testimonies, many important details would not get missed in the records and in future it would be possible to prove that such and such things have been said. And now, even if a lawyer takes notes about what has been said and what was written, it becomes very hard to prove it.

I suggest that the use of technical devices during investigation operations be obligatory. This point is formulated in the draft as a suggestion, not as an obligation. I believe that in this case we will have positive achievements in protection of human rights.

And the third concern relates to limitation of the arrest term to 60 hours. During the current 72 hours, many serious issues arise. I understand that the term is shortened this way, but I believe that violations will increase if we have 60 hours instead of 72 hours term.

Author Գայանե Առաքելյան
Source www.hra.am