The Human Rights Defender examined the statement
of the Special Investigation Service on the arrest of the former Deputy Head of
Staff of the RA National Assembly Arsen Babayan and several professional
publications made on this issue.
At the moment the Defender records the following:
1. The Special Investigation Service detained A.
Babayan on suspicion of committing a crime under Article 314 (1) of the RA
Criminal Code, which is punished with a fine in the amount of three to five
hundred minimal salaries, or with imprisonment for the term of up to five
years, with deprivation of the right to hold certain position or practice
certain activities for up to three years.
2. Section
1 of Article 2 (5) of the Law on Amnesty of 2018 establishes the following:
“To deny the initiation of a
criminal case, to terminate criminal proceedings, as well as to terminate
criminal prosecution or not to prosecute for the crimes committed until October
21, 2018 (except for cases that directly resulted in death, and for which there
is an objection of the successor of the victim), for which persons can be or
are charged with a crime that is punished with a deprivation of liberty for a
term not exceeding four years”.
3.
Article 6 (17) of the Criminal Procedure Code
defines “criminal prosecution” as all procedural actions conducted by the criminal
prosecution authorities, and, in cases prescribes in this Code, actions by the
victim, with the purpose of discovering the person that has committed an act
prohibited by the Criminal Code, (of discovering) the latter's guilt in the
commission of the crime, as well as (of) ensuring that the person is subjected
to punishment and other coercive measures.
4.
The Human Rights Defender takes notice of the
regulation of Article 35 (6) of the Criminal Procedure Code prohibiting the
termination of proceedings and the termination of criminal prosecution based on
the adoption of a Law on Amnesty if the accused objects to it.
The Defender also takes into account that pursuant
to Article 4 (12) of the Law on Amnesty the convict’s consent is not required
for the application of amnesty in case a judicial act entered into legal force.
That is, the cited legislative provisions suggest
that even if a person objects to the application of the Law on Amnesty with
respect to him, he would not be sentenced to imprisonment even if he has been
convicted.
5. The
mentioned also means that if every perspective of convicting a person to a
deprivation of liberty is eliminated, all procedural actions interfering with
the right to personal liberty may turn into an end in itself, and, thus, become
unlawful.
The described increases the procedural burden of
the authority conducting the proceedings to ensure the unambiguity of its
actions from the perspective of the legitimate aim and proportional means
pursued. It also means that the authority conducting the proceedings has an
obligation to demonstrate that the limitation of the person’s right to personal
liberty is not aimed at punishing him or subjecting him to sufferings.
6. In view
of the foregoing, a discussion procedure on his own initiative concerning Arsen
Babayan’s rights has already been initiated by the Human Rights Defender’s
decision.
At the moment, by the Defender’s instruction a visit has been conducted to the Detention
Centre of Yerevan City Police Department to meet Arsen Babayan.
With an official letter the Human Rights Defender
requested a clerification from the Special Investigation Service and, given
that the detention in question, a one-day deadline had been set for providing
it.
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