In connection with the
criminal case, the practice of unlawfully restricting a person's right to free
movement and keeping the person in a state of constant uncertainty continues
remain problematic. This, particularly, refers to issues related to Border
Electronic Management Information System (BEMIS). One of the main issues is
that when a person does not know or is not informed that they are banned from
crossing borders and when, even years later, that person tries to leave the
country, they are unable to do so.
Complaints addressed to
the Human Rights Defender over the years serve as evidence that the practice
has not improved. Only in 2020, due to military and emergency provisions, the
number of complaints was different. After the removal of the restrictions on
crossing the state border, parallel complaints continue to be addressed.
It is especially worrying
that in the presence of the mentioned restrictions, not only as a result of the
activities of the Human Rights Defender, but the bodies investigating the
criminal case have themselves recorded problems related to the restriction of
the right of the suspect or the accused to free movement.
According to Article 144
of the Criminal Procedure Code of the Republic of Armenia, the suspect or
accused who has signed a statement not to leave the country may not travel to
another place or change their place of residence without the permission of the
investigating body, investigator, prosecutor or court: They are obliged to
appear at the call of the investigating body, investigator, prosecutor, or
court, to inform them about the change of his place of residence.
In particular, the data
on the application of the "Signature not to leave" precautionary
measure by the prosecuting authorities are entered into the BEMIS. The task of
this system is to establish a unified information system for registration of
vehicles entering and leaving the Republic of Armenia by the relevant
ministries of the Republic of Armenia, other public administration bodies, to
ensure the receipt, accumulation and processing of information, as well as to
provide the necessary data to the relevant bodies.
As in 2017, 2018, 2019,
so in 2020, in cases considered by the Human Rights Defender, the restriction
of the person’s right to leave the country was not removed from the BEMIS
system, based on the ban applied during the preliminary investigation; although
the latter had served the sentence imposed by the court
Taking into consideration
the continuity of the complaints submitted to the Defender, as well as the
systemic nature of the problem, the Human Rights Defender has made a
comprehensive study of the constitutional basis and international legal
principles for ensuring the right to free movement of a person, the legislative
experience of foreign countries, and the precision and predictability of
domestic legislative regulations.
As a result, the Defender
presented the problem from the point of view of the legislation and the
constitutionality of the law enforcement, by exercising the function of
applying to the Constitutional Court of Armenia.
The Constitutional Court
of Armenia, by its decision ՍԴՈ-1360 made on April 4, 2017, expressed the
conditions predetermining the legality of law enforcement practice, noting that
“In the presence of such regulation and in case of restriction of the freedom
of movement of a person through such mechanisms, it should be realized solely
on the condition that the information on the decision to eliminate the
precautionary measures should also be placed in the same system, and that the obstacles are removed regarding
the exercise of a clear duty of the competent authority and the right of free
movement of a person”, at the same time recording the absence of this requirement
in the legislation, in the form of a clear obligation imposed on the body
conducting the proceedings.
Moreover, as a result of
examining the content of the complaints addressed to the Human Rights Defender,
the Constitutional Court came to the conclusion that the lack of a direct
obligation to send information to BEMIS to lift the precautionary measure in
the decision subject to investigation by the Government of Armenia, calls the
certainty of that procedure into question, as there is no such obligation
imposed on a specific competent authority.
Until appropriate
legislative changes are initiated, the Human Rights Defender notes that law
enforcement practice should proceed on the principle that, in addition to the
obligation to provide information to the competent authorities using precautionary
measures, they should also have an obligation to provide information on the
elimination of the precautionary measure.
The fact that similar
complaints continue to be addressed to the Human Rights Defender is itself
evidence of a lack of a unified law enforcement practice. First of all, this is
because in case of removing the restrictions on the right of free movement of a
person, the mechanisms for posting information in BEMIS will still be missing.
In other words, it is still unclear which body should take responsibility to
inform the body running BEMIS about the restriction of the ban imposed on the
person.
Another issue is that the
relevant information is transmitted to the Police (who currently runs BEMIS) by
mail, which in itself complicates the procedure, taking up extra resources and
time. In practice, there have even been cases when a person tried to cross the
state border two or three days after the termination of the criminal
prosecution but was not allowed, as the body conducting the proceedings sent
the necessary letter through the postal service, which the Police failed to
receive in time.
In such cases, through a
cooperation with the Police, the issue is usually solved in the shortest
possible time by sending the letter in a facsimile version (by fax) to the
competent subdivision of the Police. However, the practice of sending letters
via postal service continues to remain relevant, although the de jure removal
of the restriction of the right is immediately subject to de facto
implementation.
Therefore, the Defender
reaffirms his position that the problem should be resolved by overcoming the
legislative gap, and by fixing the relevant procedures. At the same time, it
should be noted that if a person has some type of judicial status, for example,
of an accused, but no precautionary measure has been applied to him, then their
right to leave the country cannot be restricted in any way.
For details, please view
the Human Rights Defender 2020 annual report, page 576.
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