“The Impunity Contributes to the Escalation of the Situation We are Facing Nowadays”
An interview in which member of UN Subcommittee on Prevention of Torture and Director of “Civil Society Institute” NGO Arman Danielyan sums up the work performed in 2014.
Torture prevention remains one of the most problematic areas of human rights in Armenia. Armenia is one of the 25 countries to have a representative (in your person) at UN Subcommittee on Prevention of Torture. In 2010 you were elected and in 2014 re-elected as a Subcommittee member. What has changed during these years in the area of torture?
Some steps have been observed, particularly, Special Investigation Service (SIS) has started initiating lots of cases on torture; however, the results are not discernible yet. Before people would not submit complaints and a few cases was initiated. However, now cases are initiated, but the cases that reach the court are still few. Following the SIS reports in 2014 we noticed that the number of cases to be initiated on exceeding official powers under Article 309 of the Criminal Code of RA increased. Before that we had only a little number of cases. Nevertheless, not many cases reach the court – they are either dropped or the preliminary investigation takes too long…I hope in 2015 we will start to understand what is going on in that area. However, it is too early to speak about any serious and noticeable progress.
As a glimpse of progress can be considered the promise of the Minister of Justice to finally make clear the term “torture” in our Criminal Code and conform it to the wording of the UN Torture Convention. Thus, this crime is to become a public accusation from the private one. This means, that one cannot torture a person and then say that “since he/she does not complain we will not initiate a criminal case”. Therefore, if there is a fact of a torture case, the government is obliged to initiate a case and carry out an investigation.
You have mentioned a lot that the practice of extracting a confession and disclosing the case by subjecting to torture has roots in the Soviet times when the self-incriminatory testimony was thought to be the “queen of evidences”. How can this culture be changed? What methods should be used to eliminate the vicious practice of torture from the police?
Of course, there are a number methods which are used in developed countries. The problem here is the following –when an investigator, policeman or officer is familiar with no other methods, he uses torture. On one hand, it is way easier to get confession testimony by torturing than to exert huge efforts on gaining evidences. On the other hand, the perpetrator of torture is sure he/she will not be punished for that: the impunity atmosphere contributes to the situation we are facing in Armenia nowadays. Only in sporadic cases the policemen were brought before the court for torture, but all of them were released on amnesty.
If there is a wish to fight the phenomenon, there are both means and methods for that. The question is – to what extent is our system ready to do that? In countries where there was willingness to fight against perpetrators of torture, they would fight using radical methods – up to dismissing all the policemen and picking a new team of people who had not been infected and had not inherited the torture practice.
In our case which fighting method would be more productive?
In our case we need to understand the structure, the body that is ready to fight tortures. The court could be a really useful and productive one. I am saying “it could be” as until now I have seen no such will expressed by the court. If the court doesn’t accept the testimonies extracted by torture, no case will be disclosed and using torture will not make sense anymore. This will bring to the implementation of more legal methods in the police system. The police will have to investigate the cases and acquire evidences in lawful ways and so on.
So, if there is a will there are ways to solve the problem. But your recommendation is more about the permission of using the testimony extracted by torture. How and which agency must hold the policeman, who has used torture, accountable?
Investigating torture cases is within the jurisdiction of the Special Investigation Service (SIS), but the issue is that SIS does not have operative employees. The police are to implement the operative work. So, it is the police that work against the police, that is why we have what we have.
The police maybe themselves do not want to torture. Several years ago the Head of the Police would call a beating policeman a “butcher, imbecile”, etc. However, the situation cannot be changed with one statement only for those people really don’t have any other working methods. We should fight against this phenomenon either by introducing new methods of case disclosure or employing specialists who can work respecting due process. Police Academy can train such specialists, it still seems they do not do it the way we would like it to be.
The police workstyle is to be changed in general. Confession is the method of case disclosure used in Armenia. Even if they don’t apply torture, confession is a policeman’s number one objective. They arrest a person through the use of investigative information, then extract confession and only later they start gathering evidence, meanwhile, everything should be just the other way round.
Fighting against torture is one of the priorities of “Civil Society Institute” NGO. How is the NGO going to continue its activities in this area in 2015?
2015 seems to be a year of legislative amendments – Criminal Procedure Code, Criminal Code… Though it is insufficient, this amendment is one of the most important ones as the definition “torture” will finally correspond to the Convention. We are going to continue working with the SIS, courts, police and other bodies that have a mind to fight against torture or can contribute to the fight. The situation development is rather slow, yet it does develop. If there were coordinated activities and a united will to fight against this phenomenon, direct changes would be more efficient and perceptible.
CSI is also engaged in human rights’ issues at penitentiary institutions. To sum up in 2014 what changes took place? Can you see any progress?
The annual report of civil observers of penitentiary institutions was published and discussed in December. Compared to past years the progress in 2014 was that the correctional system was ready to discuss the sore point. In the past years the body would say they did not have problems and all the problems written in the reports were not consistent with reality. I am slightly exaggerating but the attitude was suchlike.
Another evidence of progress is the opening of “Armavir” penitentiary institution. Though it is not used yet, starting from this year prisoners will inhabit the institution, which will improve the conditions to some extent. Nevertheless, the overcrowded prisons still remain a sore subject. We keep facing these problems because of pretrial investigative bodies and courts.
I believe that overcrowding does not happen just because of keeping many people in one cell, but because of keeping behind bars such people who should not have been there. I am talking about alternative pretrial detention and execution of alternative punishments which are at a very low level, as well as of the system of early conditional release that does not operate.
If you ask me about the detainees’ priority, I will say that it is the early conditional release.
At the end of the year CSI organized a workshop on the problems of early conditional release and presented a package of recommendations to stakeholders. Why the early conditional release (ECR) system does not function in Armenia?
We have never had a functioning ECR system. Till 2006 we used to have a system of avoiding punishment by corruption – all defendants knew whom they were to pay, how much to bribe to receive freedom . The system would function for the game rules were simple. Almost 90% of the applicants would go at large – maybe the prices were affordable. Then the government decided to commence fight against corruption. An Independent Committee, comprising all governmental departments, was established. It is not that easy to bribe the Committee – this resulted in only 5% of applicants to go at large. – this is a 2013 indicator. The number of those who get out of jail decreased from 90% to 5%. We can say the system does not function as the number of those who walk free is miserable and the point is that besides 5% there are other people who can suffer their penalty out of prison without being a danger to the society.
What is the problem then?
The problem is that we have never had a real estimation mechanism, according to which it would be decided which prisoner can walk at large and which cannot. The lack of this mechanism results in this unpredictable situation. The whole world is familiar with the mechanism of reoffending risk assessment. Every prisoner goes through rehabilitating activities and when it is to be decided whether to release him on parole, his reoffending risk is to be assessed.
What are our criteria for releasing and carrying out risk assessment?
We have had the principle of “prisoner’s correction” since the Soviet times, still we have no correction-estimating criterion – this is a subjective attitude. The reoffending risk is possible to assess through social research and there are competent specialists. If the riskiness is low, a person can be released on conditions. The safety and security of the society are ensured if there are surveillance mechanisms. If the prisoner violates the conditions, his ECR is cancelled and he returns to PI.
In case a perpetrator serves his sentence without ever undergoing relevant activities or being supervised, the risk that he will commit a new crime is higher than in case of a person who has been released on a parole, is under supervision and the probation service carries out relevant activities to provide his fast and smooth adaptation to normal life.
You organized a workshop on this very topic. The event has proved that the stakeholders do not deny that the system needs to be improved. Is the need for improvement just discussed or there have already been actions taken?
Yes, almost everyone realizes that the system does not function and something is to be done. Frankly speaking, I do believe that steps will be taken. However, there might be different approaches towards these steps.
Our NGO has presented to all stakeholders a concept on our attitude towards the system - up to reoffending risk assessment tool factors. We are waiting for a response from Ministry of Justice and maybe for some actions directed at this issue. Anyway, we are always ready to hold a discussion. Our concept might not be that appropriate and relevant in Armenia and maybe they will present a better mechanism. Nevertheless, we have been waiting for the introduction of the mechanism for several years.
As an NGO representative you were a member of Police Disciplinary Committee. Last year in October you terminated your membership. What was the reason?
The Committee was inactive and was not functioning the way we were expecting. The problem was more of legislative nature. The police and the government commented on the committee as a body (I am quoting what I have heard during the session) that is targeted at protecting the rights of policemen who have carried out infringing actions.
We became members of the Committee as we believed that civil society representatives would be allowed to monitor the internal investigations carried out in police. The Committee was supposed to be an objective body that would discuss and assess the results of internal investigations and then counsel and express its opinion if, according to the body, an improper decision was made.
However, according to the police, the Disciplinary Committee can get the results and discuss them only when it is confirmed that a policeman has violated the law. If no breaches are identified, the Committee is not competent to discuss the decision.
Hereupon, we have our concepts which we have submitted to the National Assembly. We believe, the Committee should be vested with more authorization, the model should be changed to turn the body into one that is under civil surveillance. I believe that a meeting will be called soon and we will discuss this issue with the police and other stakeholders.
And finally, will you present new “When You Are Brought to Police” application of CSI?
We organize training sessions to raise awareness on human rights, we also have 080-080–804 hotline which provides free legal assistance. We receive lots of calls regarding human rights when dealing with the police. We have come to the opinion that people need to be aware of their rights. There are 12 questions in the quiz – with 3 answer-options– each provided with a brief comment.
The app is educational, as people learn about their rights quicker by taking tests rather than reading booklets. Being aware of human rights will decrease the chance of becoming a torture victim. The app can be downloaded from the Play-Store. It also has the sharing function so that one can tell his/her friends about the results.
The app is to be presented on January 22 during our conference on torture. As far as I know this is the first app on human rights in Armenia.
Interview by Mery Aleksanyan