ARMENIA: STATEMENT CONCERNING APPLICATION OF DETENTION AS A MEASURE OF RESTRAINT

FIDH
May 5 2014

CSI (Civil Society Institute, Armenia)
FIDH (International Federation for Human Rights)

Joint Statement concerning the application of detention as a measure
of restraint in Armenia

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 [1]. 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 [2].

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 [3]. The ECHR has also stated that detention
can be resorted to if there is a serious threat of absconding or
reoffending. [4]

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. [5]

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. [6]

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. [7]

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.

To deliver decisions on detention in compliance with the jurisprudence
of the ECHR.

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