Since 2016, the Human
Rights Defender has started a new practice of developing jurisprudence and
legal standards in decisions related to concrete cases. This procedure is based
on the same principles as the case law of the European Court of Human Rights
and the Court of Cassation or the Constitutional Court. In practice, legal
standards developed by the Human Rights Defender are widely used in court
practice.
One
of the most obvious examples concern the decision of the Criminal Court of
Appeal which is based on the legal standards of the Human Rights Defender. On
23 May, the Court issued a decision on applying a security measure against a
person who committed a criminal act, by setting a clear timeframe for placing
the person in a psychiatric institution.
The
issue is that when there is a ground to assume that person committed a criminal
act being legally incapable (for example, due to mental illness), the criminal
prosecution body initiates a proceeding for application of medical enforcement
measures. Until the proceeding is completed, security measures might be applied
to the person, including hospitalization in a psychiatric establishment.
In
this regard, the Human Rights Defender repeatedly raised the issue that the
current legislation does not provide terms, maximum timeframe and requirement
for periodic review of the placement of a person in the psychiatric
establishment. As a result, a person may be deprived of liberty for an
indefinite period of time. During the monitoring visits in the capacity of the
Human Rights Defender as the National Preventive Mechanism, many cases were
recorded when, as a result of the application of the security measure, persons
have been kept in a psychiatric establishment for a long period of time and
without judicial control.
This
issue is illustrated in the annual and ad
hoc reports of the Human Rights Defender as the National Preventive
Mechanism, as well as in legal standards of the Human Rights Defender.
It
should be mentioned thereon that the RA Criminal Court of Appeal stated in the
decision that placing a person who committed a crime in psychiatric
establishment as a security measure, the lower court restricted the person
liberty for an indefinite period of time. The Court considered this
impermissible, taking into consideration the positions expressed in the legal
standards of the Human Rights Defender as the National Preventive Mechanism along
with international standards.
The
development of this practice of the Criminal Court of Appeal is an important key
for the strengthening of human rights in the country. It is an example of how
the case law can be developed through the work of the country's legal
institutions based on international obligations.
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