CSI (Civil Society Institute, Armenia)
FIDH (International Federation for Human Rights)
Yerevan-Paris, 5 May 2014 - Recent cases of pre-trial detention in Armenia once again raise the issue of the routine application of measures of constraint by judges in violation of the international human rights standards.
The Criminal Procedure Code of Armenia (CPC) details the grounds and procedure for applying measures of restraint, including pre-trial detention. Pre-trial detention may be ordered by a court if the alleged crime or felony is punishable with at least one year of imprisonment, and when sufficient grounds exist to suspect that the accused intends to abscond or interfere with proceedings, in particular by exerting unlawful influence on other persons involved in the case; to tamper with evidence; to commit another criminal offence; to avoid responsibility and the imposition of punishment, or to oppose the implementation of a sentence . When selecting a measure of restraint, factors such as the nature and the gravity of the crime, the personality of the suspect or accused, his or her occupation and dependents, and the availability of a permanent residence should be taken into account .
The European Court of Human Rights (ECHR) has repeatedly held that the gravity of charges cannot by itself serve to justify long periods of detention on remand . The ECHR has also stated that detention can be resorted to if there is a serious threat of absconding or reoffending .
Detention is regarded as the most severe measure of restraint and should be used as a measure of last resort, and only where less restrictive measures cannot ensure the proper conduct of the defendant and due administration of justice. The United Nation Human Rights Committee has stated that pre-trial detention must not only be lawful, but also necessary and reasonable in the circumstances .
In Armenia, courts routinely omit making reference to any factual circumstances to support their decisions to apply measures of restraint. Court decisions on these issues typically contain in abstracto assumptions about the risk of absconding and/or creating obstacles to an investigation, but fall short of providing any specific facts or explanations as to why the law applies to the individual circumstances at hand. This can be illustrated by a number of cases.
On 20 October 2013, the car of renowned actor, Vardan Petrosyan, collided with another car carrying six passengers. The six passengers were hospitalized, and two people died in the incident. In the realm of this accident, Vardan Petrosyan was seriously injured and thus remained in hospital until 3 November 2013, then he was sent back home with treatment and medical recommendations. Two days after, he was arrested at his home and since 6 November 2013, Vardan Petrosyan has been held in pre-trial detention: the court justified this measure on the basis of the gravity of the offence, because two people of a young age were deprived of their lives, and “on human morale”, in contradiction with the aforementioned jurisprudence of the ECHR. Furthermore, the court has not substantiated its decision to apply detention measures on the grounds provided for under Armenian legislation, thus contravening the international standards on pre-trial detention.
After the decision on pre-trial detention was rendered on 9 November 2013, Vardan Petrosyan’s health imposed his admission at the penitentiary hospital. On 29 April 2014 he was discharged from this hospital, and sent back to "Nubarashen" Penitentiary Institution. According to the medical assessment, his health has improved, and only needs stationery treatment. He is currently under supervision of medical personnel at “Nubarashen".
Mr. Petrosyan's attorney has stated that he is unable to confirm whether the conclusion in Mr. Petrosyan's medical assessment is well founded. However, Mr. Petrosyan has serious lung problems and his lawyer believes that the conditions in "Nubarashen" may not be appropriate conditions in which to house Mr. Petrosyan in light of these problems.
In another case, Tigran Petrosyan, a participant of the 5 November 2013 strike organized by the head of Tseghakron Party, Shant Harutyunyan, was arrested and detained on charges of hooliganism (under Article 258 (4), which includes aggravating factors). Tigran Petrosyan is the sole guardian of his seriously ill father. Once again, the reason for his detention was not substantiated by the judge.
The detentions of Vardan Petrosyan and Tigran Petrosyan are cases that have attracted much public attention. However, there are many non-high profile cases in which detention has been used as a measure of restraint without justification. Moreover, pre-trial detention is not only chosen without proper substantiation in cases involving grave crimes, but also in cases concerning offences of moderate gravity.
Precisely, on 13 March 2013, a criminal case was instituted against Aram Mughalyan and three other young people under Article 258 (1) and (3(1)) (hooliganism) and Articles 34-185 (2(1)) and (2) (attempt to damage or destroy property) of the Armenian Criminal Code. According to the indictment, the young people had tried to set fire to a haystack. As a result, the haystack's owner had suffered material damage totaling 36000 AMD (about 62 EUR) due to fire damage caused to 30 stacks. On 17 April 2013 the accused were arrested and a decision on detention as a measure of restraint was taken by the court. Neither the investigative body nor the court had factual and material elements indicating that the accused would abscond or interfere with proceedings.
Since 30 March 2013, whenever the accused were called to the police station in order to provide explanations, they presented themselves voluntarily to the police. Moreover, according to Mughalyan’s attorney, the prosecutor underlined during the trial that it was very unlikely that Mughalyan would abscond as he has a commitment before the State, which had provided him scholarship for studying at Cambridge University. Nonetheless, the prosecutor held on the position that Mughalyan should be kept under detention. On 15 October 2013 the Court of First Instance of Armavir marz found the accused persons guilty but released them on the basis of an amnesty decision .
Issuance of identical standardized decisions using the same wording, without giving reasons based on the facts of the given case, constitutes a serious restriction on the right to liberty guaranteed under international human rights law .
In order to strengthen the right to liberty and related safeguards in Armenia, in accordance with international human rights standards, CSI and FIDH call upon the relevant authorities of the Republic of Armenia:
• To deliver reasoned judicial rulings that contain:
a.relevant material evidence and individual factual circumstances of the case that led to the determination that detention is required;
b.an explanation as to why other measures of restraint could not be applied to that individual case.
• To promptly consider any appeals of detention.
• To examine the continued existence of a reasonable suspicion about the defendant's risk of absconding or interfering whenever a decision to prolong detention is taken. Extension of detention terms cannot solely be based on the same arguments that were used to authorize the previous detention term.
• To use existing alternatives to pre-trial detention.
1. CPC, Article 135
2. CPC, Article 135.3
3. Ilijkov v. Bulgaria, ECHR Judgment of 26 July 2001, no. 33977/96, §81, Ječius v. Lithuania, no. 34578/97, § 94
4. Ilijkov v. Bulgaria, ECHR Judgment of 26 July 2001, no. 33977/96, §§83-84,
5. "The Committee reaffirms its prior jurisprudence that pre-trial detention should be the exception and that bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the State party", Hill v. Spain, U.N. Doc. CCPR/C/59/D/526/1993, 2 April 1997, §12.3.
6. Case details can be found at http://www.hra.am/en/tag/mughalyan#
7. Mansur v. Turkey, ECHR Judgment of 8 June 1995, no. 16026/90, §55