Tatevik Gharibyan, Photo by hra.am
On March 13, 2013 Study on Ill-treatment and Torture against Juveniles in the Republic of Armenia has been presented in Yerevan
“Civil Society Institute” NGO expert, co-author of the study Tatevik Gharibyan presented the current issues in the legislation on torture.
Article 17 of the Armenian Constitution prescribes that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. While Article 119 of the Criminal Code of Armenia defines that torture is any action through which a severe pain or physical or mental suffering is intentionally caused to a person, where it has not resulted in consequences provided for in Article 112 and 113 of the Criminal Code (harm of utmost or medium gravity intentionally caused to person’s health). Such act is punishable by imprisonment for up to 3 years, and in case of aggravated circumstances, which, inter alia, includes those committed in relation to a minor, are punished by imprisonment for a term of three to seven years.
According to Tatevik Gharibyan, the definition of torture used in the Criminal Code does not comply with the definition provided in the UN Convention against Torture.
“Article 119 does not include harm of medium or upmost gravity intentionally caused to person’s health, does not include elements of specific purpose and specific actor, does not restrict torture to acts undertaken by state agents, and it is generally applied in the context of horizontal relations between two citizens, without any involvement of state agents. Besides, concerns are raised with the fact that in our legislation in case of instituting a criminal case on the basis of private prosecution, the criminal case is closed if reconciliation between the victim and the perpetrator (suspect, the accused or the defendant) of the crime is achieved”, according to the expert, this is the main discrepancies between our legislation and the UN Convention.
Tatevik Gharibyan also presented the official statistics, according to which for the period of 2010-2011 nobody was convicted under Article 119 for torture and/or ill-treatment towards a juvenile. In 2011 there were 3 convictions of adults where victims were also adults. 2 people out of 3 convicted were released following adoption of the amnesty decision.
According to Tatevik Gharibyan, the definition provided by the law does not comply with UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
Article 341(2) of the Criminal Code stipulates that “a judge, prosecutor, investigator or person carrying out an inquest, who uses torture or other violence to compel a witness, suspect, accused, person on trial or victim to testify, or to compel an expert to issue a false opinion, or a translator to provide an incorrect translation, is punishable with three to eight years imprisonment.”
According to the expert’s observations, this Article does not include severe pain or suffering inflicted by an investigator or a police officer with the purpose of extracting testimony from a person who does not have any legal status or to obtain an explanation or information which is a legislative gap. According to the official statistics, there was no conviction under this Article for the period of 2010-2012 either.
No conviction was made under Article 308 (abuse of powers) and Article 309 (exceeding powers) with relation to ill-treatment or torture towards a juvenile for the same period.
According to Tatevik Gharibyan, the Armenian legislation on treatment of arrestees and detainees contains some provisions which are not compliant with the international standards. Particularly, juvenile remand prisoner may be kept in solitary confinement for five days and convicted juvenile can be kept there for ten days which does not comply with the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Rule 67 provides that “all disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned”.
The study demonstrates that cruel treatment towards juveniles mainly occurred in the police stations during the apprehension and interrogation with the purpose to extort testimony and confession. The most common form of ill-treatment is beating. According to the expert, it is harder to reveal the cases of degrading treatment (cursing, shouting, exerting psychological pressure, threats, and humiliation.).
“The interviews conducted within the frames of the study demonstrated that there was a certain regularity in application of torture: physical violence is mostly applied towards juveniles who show aggressive or stubborn behavior while towards more tranquil children psychological pressure and threats are applied”, says Tatevik Gharibyan.
According to her, one of the safeguards against torture and ill-treatment is the mandatory involvement of a defense attorney and participation of the juvenile’s legal representative during the interrogations of a juvenile.
“However the practice shows that juveniles are often summoned to the police to give explanations without obtaining any legal status. While the involvement of a defense counsel in an interrogation of a juvenile suspect or accused juvenile is mandatory and the testimony given in the absence of a defense counsel is considered inadmissible evidence. 60 % of respondents talked with the police officers in the absence of a defense attorney”,- highlighted the lawyer.
According to her observations, statements of torture and ill-treatment were not properly investigated. “Verification of the majority of torture allegations is carried out by police investigators and the allegations are mainly considered as non-reliable. The forensic examination may be assigned only by an investigator or a prosecutor. There are cases when alleged victims report the case quite late, so it is not possible to prove application of torture as traces of violence disappear.”
The authors of the report suggest that the torture victim and his/her defense attorney also obtain the right to apply for forensic examination directly to the forensic expert.