Due to the legal and practical issues within the system of release from prison on the ground of severе illness, the process of release of sick prisoners is procrastinated for months and in many cases prisoners simply die in the penitentiary institutions.

This problem along with number of other shortcomings was revealed in the result of research "Release of prisoners on the ground of severe illness. Legislative and practical problems in Armenia". The research was conducted by Civil Society Institute NGO. On October 14 presentation of the report took place and discussions devoted to the issue between NGOs and representatives of state bodies followed. The institution of the release from prison as a result of severe illness is stipulated by the Article 79.2 of the RA Criminal Code. The prisoner may be released from punishment if the illness he/she suffers is included in the list of severe illnesses preventing him/her from serving further punishment is defined in the Government decree.

Conclusion on the state of health of the prisoners is made by the Medical Working Commission (MWC) comprised of 5 persons. The Commission is established by the RA Minister of Justice Decree. The MWC presents the cases of sick prisoners to the Inter-Agency Commission (IAC). If the latter's conclusion is positive, the penitentiary institution submits the case to the Court.

"According to the point 18 of the 825 Government Decree, decisions of the MWC are binding, but it is not clear whom these decisions are binding for. If the IAC makes decisions contradictory to that of the MWC, it appears that decisions of the MWC are not mandatory for the IAC", claims Arman Zrvandyan, the lawyer of the Civil Society Institute NGO and co-author of the report.

IAC was created by the Government Decree 1636 (04.12.2003) but the work of the Commission is not regulated by any legal document, asserts the lawyer. Procedure of decision making, standards, terms are not prescribed, there is no requirement to give reasons for the decisions.

The research demonstrates that the IAC rejects conclusions of the MWC without grounds and usually assigns additional expertise. «The process takes more time and the sick person suffers as a result. Once it took a year for the case to reach the court. I do not think it is a proper position for medical doctor», says Laura Gasparyan, medical expert

There should be a single and final medical conclusion adopted by a group of specialized doctors.

Member of the Group of Public Observers Conducting Public Monitoring of Penitentiary Institutions and Bodies of the RA Ministry of Justice Laura Gasparyan presented the problems of release from prison of the sick prisoners from the medical perspective.

She notes that sick prisoners usually face problems before applying to the Commissions. «In the penitentiary institutions of RA there is a problem of regular medical check-up and lack of professional medical doctors», says Gasparyan. She claims that they found cases when prisoner suffered severe illness could not raise the problem with the IAC because the Penitentiary institution did not have a medical doctor in its staff who could make a conclusion on the health state of the prisoner.

The medical expert says they have revealed many personal medical files of prisoners with no record or containing incomplete record. Medical doctors claimed they are overloaded and simply can not manage to do both: keep the records properly and treat patients. In fact, there is no medical record on the state of health of the prisoner in penitentiary institution.

Laura Gasparyan notes that it is not proper that IAC comprised of 5 members makes decisions based on the opinion of two professional medical doctors. "The composition of IAC is not diverse enough to analyze and evaluate different diseases. Opinion of two specialized medical doctors is needed", emphasizes Laura Gasparyan.

Gasparyan claims that IAC too is not capable to give valuable evaluation while having only two medical practitioners. She notes with regret that sometimes IAC assigns additional medical examination in the same medical facility and it is conducted by the same physician. She believes it is a bad practice as none of the doctors will disprove of his/her own conclusion.

Even if the additional expertise is conducted by another physician and the result is different, another issue will rise, the medical expert believes. How the IAC should evaluate two different medical conclusions "The medical conclusion should be one and final", believe the authors of the report.

Civil Society Institute recommends creating independent medical commission within the system of RA Ministry of Health comprised of specialized doctors. Diagnosis in each case has to be made by a group of at least three specialized professionals. Conclusion made by the Commission should be final. Possibly short terms for diagnosis and decision making process should be defined.

The main principle for release from prison should be compassion.

Civil Society Institute NGO suggests making compassion as the main principle for release from prison.

Lawyer Arman Zrvandyan finds that Part 3 of the Article 79 of RA Criminal Code is controversial. It reads: "Persons defined by part one or part two of this article (persons suffering severe illnesses) may be subject to criminal liability and punishment in case of recovery, if expiry dates set forth in articles 75 and 81 of this Code have not passed."

In his opinion, this provision has to be changed as according to the Article 22 of RA Constitution and international law, no one shall be tried twice for one and the same act. "Release from prison could be conditional but reconviction for the same act should be eliminated", believes the lawyer.

According to the Article 432. 3 of the RA Criminal Procedure Code, when resolving the issue of release of severely ill prisoners from the sentence, the court takes into account the gravity of the committed crime, the personality of the prisoner and other circumstances. However, it is not clear how the nature of the illness of the prisoner is influencing the decision of the Court.

The lawyer finds inadmissible the wording «other circumstances» as the court may consider any circumstance regarding the prisoner at its discretion. «The bounds of the circumstances have to be defined in the law, it should be exhaustive and clear to provide predictability for the prisoners», says Arman Zrdandyan.

The authors of the report suggested to revise in the Criminal Procedure Code procedure of examination of such cases. "In none of nine examined cases representative of the prisoner took part in the trial. It is not clear in the law whether the representative may participate, is it a public hearing or not, what are the order and terms for the court to make decision?" The lawyer suggests defining short terms for the judicial trial when examining the issue of release from prison of the prisoners suffering severe illness due to their specific status.

Discussion has followed the presentation of the report. Adviser to the RA Minister of Justice Nikolay Arustamyan specified that the work of the IAC is rather administrative than medical. He claimed that not everything should be specified in law; hence he does not consider necessary to have detailed legal regulation of the IAC.

"If the law provides a possibility to have a defense lawyer, what is the problem? Did the lawyer want to participate, was it prohibited? I am sure there was no need for that. Otherwise it couldn't be rejected because there is no ground for rejection", emphasized the representative of the Ministry of Justice in respond to the remark on judicial trial procedure.

Representative of the RA prosecutor's office asked how should be solved the issue of those prisoners who intentionally harm themselves in order to be released. Lawyer of the Civil Society Institute Tatevik Gharibyan recommended applying practice of different countries. "The cases of self-mutilation should be rejected by the Commissions."

Mary Alexanyan 

Source www.hra.am