Both
in 2020 and 2021, the Human Rights Defender continued to receive complaints on the
body conducting criminal proceedings unjustifiably prohibiting a detainee from visits
and having phone conversations with close relatives, including family members,
or their legal representative. Studies of these complaints, as well as the
decisions made by the body conducting criminal proceedings, demonstrate that
the issues in this regard are systemic; the intolerable practice is ongoing.
The decisions
of the criminal prosecution body and the court to prohibit a detainee from visits
by family members are not always justified. For the most part, the person
conducting the proceedings is satisfied with just referencing
legislative norms, and in general, there is no comparison of the factual
circumstances with the factual data obtained in the case.
As
for the review of the decision, in some cases, it is either unnecessarily
delayed or the need for continued application of the restriction is not
discussed at all. In such circumstances, the restriction is often applied
arbitrarily, i.e., without the pursuit of legitimate interest; moreover, it
intends to psychologically distress the detainee with an aim to obtain the
information necessary for the investigation. Thus, in addition to depriving a
person of liberty, they are subjected to further suffering by restricting their
contact with his/her family.
For
example, in one of the complaints, a detained woman was deprived of the
opportunity to see or talk to her two minor children and no proper
justifications were provided.
In
one of the cases, a ban was imposed on the visits and phone calls (including by
the children) of a detainee for about six months. Moreover, the ban has not
been lifted as a result of official communication.
Investigators,
prosecutors, and judges often justify the need for a ban with a legitimate
interest by taking a formal approach and fail to elaborate the factual data by
which they concluded that if a person exercises their right to visits and
telephone conversations, it will hinder the objective investigation of the
case. In this context, it is
particularly unclear, for example, how children are related to the crime that
the person is convicted of, and how their visits or telephone conversations can
hinder the investigation of the case.
It
should be noted that in practice, visits and telephone conversations are
prohibited at the same time. Normally, the ban on visits is lifted first, while
the ban on telephone conversations is maintained for a longer period. Such an
approach is justified by the body conducting the proceedings due to the lack of
mechanisms for monitoring telephone conversations.
Legislative
and practical studies on the exercise of the right to maintain contact with the
outside world and to visits by close relatives has shown that the problems that
arise in law enforcement practice are, among other things, the result of flawed
and unclear legislative regulations.
Although
the legislation of the Republic of Armenia contains certain regulations in this
regard, they are still not sufficient for the real guarantee of the right.
In any case,
1. The mere essence of
the criminal investigation itself cannot be a ground for restricting the right
to visits by family or close relatives. Any restriction on such communication
must have a specific and personalized justification․
2. family
members or close relatives of the person deprived of liberty should be excluded
from the list of persons entitled to visit and stricter requirements should be
introduced for the possibility of restricting the right to visit them.
3. the
investigator should not be endowed with the power to restrict the right of a
detainee or a prisoner to visits by family or close relatives;
4. decisions restricting this right must be
reasoned and justified;
5. they
should be immediately handed over to the detainee and/or their lawyer in order
for them to take full advantage of the legal opportunity to appeal;
6. the
decision restricting the right to visits by family or close relatives should be
reviewed on a regular basis, regardless of the desire or attitude of the person
deprived of his or her liberty.
Taking all the above-mentioned statements into
account, the Office of the Human Rights Defender has developed a draft of
legislative amendments. Back in 2018, in cooperation with the Ministry of
Justice, the draft was presented to the Ministry. Later it was discussed many
times in the Standing Committee on State and Legal Affairs, as well as in the
Standing Committee on Human Rights and Public Affairs of the National Assembly.
Before the legislative changes come into force
in the new Criminal Procedure Code of the Republic of Armenia, it is necessary to
develop the practice in a direction that each decision made by the person
conducting the proceedings clearly defines the scope of persons with whom the detainees'
visits and telephone conversations are prohibited. At the same time, it is
necessary to periodically review the decision and, if necessary, repeal it.
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