A new draft  Criminal Procedure Code of Armenia
significantly differs from the current one. This opinion is shared by the
members of the working group, which has drafted the new Criminal Procedure
Code.

On 1 February 2013 Cooperation
for Open Society Initiative organized a discussion on the new draft.

According to the
head of the working group Hrayr Ghukasyan, the group has been working on the
document for about two and a half years and they present a draft, which
drastically differs from the current law not only by its structure but also by
its ideology.

The authors of the
draft Criminal Procedure Code are convinced that the need for new legislation
was pressing. In 1999, the Code was already outdated and not able to solve
issues in the legal system.

As Hrayr Ghukasyan
says, the new draft Code was created following research of the judicial
practice, and taking into account the requirements of the European Convention
on Human Rights and practice of the European Court on Human Rights.

Let us remind
that recently the draft was presented to the government. After its approval it
will be submitted to the National Assembly. The head of the working group,
however, emphasizes that they aim to collect concerns and suggestions during
this discussion for further improvement of the draft.

Professional
opinions on the draft Criminal Procedure Code

Hrayr Ghukasyan,
Head of the working group on the draft Criminal Procedure Code

–The new draft Code
differs from the current one fundamentally and principally in terms of  its philosophy, ideology, regulatory system,
goals and structure. And there is one goal: to have a comprehensive legal act,
which would provide for effective investigation of criminal cases, and at the
same time, for protection of rights and fundamental freedoms of a person.

In this context,
the overall goal was to balance the protection of public and private interests
in the field of criminal justice.

-Which are the
principal differences between the draft and the current law?

Firstly, it’s so
called optimization of procedure: the new code aims to reach the most
effectiveness of the process of investigation of criminal cases, even by means
of skipping some stages of the procedure.

Secondly,
additional guarantees for protection of rights of a person are introduced into
the sphere of criminal procedure. Here we talk about the accused, their
lawyers, as well as victims and witnesses, i.e. the subjects who are vulnerable
under the current legislation and very often experience unjustified limitation
of their rights.

The new code
shall try to increase independence of the judiciary in the criminal procedure,
and emphasize and promote its role.

Finally, the code
suggests principally new solutions for the measures of restraint, such as
arrest and detention. Arrest becomes measures of restraint, which is
characterized as a limitation of the right of a person to freedom. The
regulations, we believe, will stop the widespread practice of summoning to the
police by force or invitation, which is in fact deprivation of liberty.

As for detention,
it should be used only in extreme situations, as a preventive measure; other
alternative means should be used as preventive measures. This, we believe,
shall give an opportunity to significantly decrease the practice of using
detention in Armenia.

Gagik Ghazinyan, Dean, Law Faculty of the Yerevan State University

-This is the
first key legislative act that corresponds to a sound logic. In respect to the
code, interest of many parties clash: the state, society, person, law
enforcement bodies. And in this framework, such a law should be created, which
will not cause issues when the interests clash.

Definitely, there
is also an issue of whether the society is ready for these reforms. It is more
important for me to see that the law be implemented in practice than whether it
is perfect or not. It is obvious that there could be an imperfect law with
perfect implementation and the most perfect law, which has shortages in
implementation or is not implemented at all. There are two reasons for
non-implementation of the law: law enforcement bodies understand provisions of
the law but do not implement them, or they do not understand, do not perceive
and because of it do not implement; thus, there is an issue of professional
qualification.

It is very
important for me that the code be perfect, and most importantly, that a mechanism
be created for the law to become operational. This code is considered as a
mid-term phase, which means that with this code we lay basis for reaching a
special criminal procedure, which is typical for a democratic country. The
language of the code is also very important, that it can be understood, the
style is laconic, but the issue of perception should be also properly
addressed.

Hayk Aloumyan,
Council Member of the Armenian Bar Association

-The draft law, certainly, introduced
many positive reforms, but I would reflect on its biggest defect. I am talking
about Article 116 of the draft code, which in this edition is just unacceptable
for me. According to it, a person can be put in detention for a month just
because he is suspected of committing a grave or extremely grave crime. And the
court can provide no basis for its decision on detention, and just state that
there is a sound suspicion against the persons or a person accused in
committing of the crime.

The working group members say that this Article does not contradict the
European Convention, but I believe that it is not a good argument. We have
other articles, which do not contradict the convention, but they become a
headache for us. We should not forget that the convention defines only the
basic principles.

Let us start with the point that one of the goals of the new draft code
is to bring the public and private interest into a balance. In our current law
we see that this balance is violated to the benefit of the public interest. And
the aim of the new code is to correct this imbalance. But as we could see on
the example I mentioned, the private interest is lessened in favor to public
interest. I do not see a sound explanation to the reason that in circumstances
of such a lack of balance we should increase this imbalance.

Artak Zeynalyan, President of the “Rule of right” NGO

-After the draft
was completed, the European Court on Human Rights made several decisions
against the Republic of Armenia, in which it documented violations, and
contradiction of the Criminal Procedure Code to the European Convention on
Human Rights. In particular, some formulations were given regarding Zhirayr
Sefelyan's case. I wish these would be included in the draft. Among others, the
European Court documented serious violations in regard to decisions on
selection of preventive measures.

Arthur Sakounts,
President of Helsinki Citizens' Assembly Vanadzor office

-My concern relates to the institute of involvement of identifying
witnesses. A strict mechanism shall be introduced that the same identifying
witness or a team of identifying witnesses be not involved in different
criminal cases.

I believe that here
we need to adopt the American model of jury, and it should be stipulated in the
law, or maybe in a governmental decision. For instance, it should be organized
on a principle of selection, as civic participation as an identifying witness is an important institute for justice. Thus, the law
should define a procedure to prevent any violations in this matter.

My second concern
is that if, for example, I am invited as a witness to Goris or Yerevan police, so
I need clear answers to the question of who will pay for the travel costs,
because the current definition is vague. The costs of travel and meals should
be defined clearly.

Lousine Minasyan,
lawyer

-I will focus on
three questions, which create lots of difficulties for the lawyers' work.

My first concern
is that neither in the current law nor in the draft there is a provision which
envisages for a lawyer or representative of the victim to have copies of
documents. These persons have a right to become familiar with documents and
take notes, but not to receive copies of documents. And the bodies dealing with
preliminary investigation, if they want, they say: “you know there is no
provision mentioning that you have a right to receive documents”. So very often
we have to use other techniques: take notes, photos etc.

The second concern
relates to recording of testimonies, especially, the testimonies of witnesses
from the accusation side. Thus, the investigator asks a question, and the
interviewer replies, and then they begin taking notes of his answers. And
always the summary is written down in a way, which harms the accused. And if we
had an opportunity to record testimonies, many important details would not get
missed in the records and in future it would be possible to prove that such and
such things have been said. And now, even if a lawyer takes notes about what
has been said and what was written, it becomes very hard to prove it.

I suggest that
the use of technical devices during investigation operations be obligatory.
This point is formulated in the draft as a suggestion, not as an obligation. I
believe that in this case we will have positive achievements in protection of
human rights.

And the third
concern relates to limitation of the arrest term to 60 hours. During the
current 72 hours, many serious issues arise. I understand that the term is
shortened this way, but I believe that violations will increase if we have 60
hours instead of 72 hours term.