Warsaw, 4 November 2010 Opinion-Nr.: CRIM – ARM/171/2010 (LH) www.legislationline.org NOTE ON THE CONCEPT PAPER ON THE REFORM OF CRIMINAL PROCEDURE LEGISLATION IN ARMENIA Based on an unofficial English translation of the Concept Paper and related documents provided by the OSCE Office in Yerevan This Note has benefited from contributions made by Professor Karoly Bard, Pro-Rector for Hungarian and EU Affairs and Chair of the Human Rights Program of the Central European University in Budapest, Hungary, and by Mr. Oleksandr Banchuk, Programme Manager and Member of the Board, Centre for Political and Legal Reforms in Kiev, Ukraine Aleje Ujazdowskie 19 PL-00-557 Warsaw ph. +48 22 520 06 00 fax. +48 22 520 0605 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia TABLE OF CONTENTS 1. INTRODUCTION 2. SCOPE OF REVIEW 3. EXECUTIVE SUMMARY 4. ANALYSIS AND RECOMMENDATIONS 4.1. Preliminary Remarks 4.2. Analysis of the Concept Paper 4.3. Consideration of Conceptual Questions Annex 1: Concept Paper on the Reform of the Criminal Procedure Legislation in Armenia Annex 2: Conceptual Questions OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia 1. INTRODUCTION 1. From April 2008 to June 2009, the OSCE/ODIHR conducted a Trial Monitoring Project in Armenia. The Final Report completing this Project (hereinafter “the Final Report”) was issued in March 2010 and included numerous recommendations on various issues related to criminal proceedings and the implementation of related human rights standards.1 On the basis of the findings contained in the Final Report, as well as, inter alia, case law of the European Court of Human Rights, decisions of the Constitutional Court of Armenia and other input from a special presidential task force and relevant stakeholders, a special Commission2 has developed a Concept Paper on the Reform of the Criminal Procedure Legislation in Armenia (hereinafter “the Concept Paper”). 2. On 21 July 2010, the Minister of Justice of the Republic of Armenia addressed the Head of the OSCE Office in Yerevan with a request for expertise on the Concept Paper. As per established procedure, the OSCE Office in Yerevan forwarded English translations of both the request and the Concept Paper to the OSCE ODIHR. The current Note is provided in response to the above request. 2. SCOPE OF REVIEW 3. The scope of this Note covers the Concept Paper and the three Conceptual Questions appended to it. Thus limited, the Note does not constitute a full and comprehensive review of the current and draft criminal procedure legislation in Armenia. 4. In the interests of brevity and for purposes of concision, the Note focuses on areas that are a source of immediate concern rather than on the positive features of the Concept Note. The ensuing recommendations and comments are based on international human rights standards, as found in international agreements and commitments ratified by the Republic of Armenia.3 5. This Note does not address structural issues related to the chosen procedural model and its internal consistency, insofar as this choice does not constitute a breach of international human rights standards. However, additional expert consultations with regard to the Concept Paper may contribute to finding solutions that facilitate better implementation of these standards in practice. 6. The Note is based on an unofficial translation of the Concept Paper and the three Conceptual Questions, which are attached to this document as Annexes 1 and 2 respectively. Errors from translation may result. 1 The Final Report is available on the OSCE /ODIHR website under http://www.osce.org/documents/odihr/2010/03/42944_en.pdf 2 This Commission was established under Instruction NK-58-A of the President of the Republic of Armenia (26 April 2010). 3 Of particular relevance for the purposes of this Note is the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (signed on 4 November 1950, entered into force on 3 September 1953, ratified by the Republic of Armenia on 26 April 2002) and the United Nations International Covenant on Civil and Political Rights (adopted by General Assembly resolution 2200A (XXI) on 16 December 1966, acceded to by the Republic of Armenia on 23 June 1993). 3 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia 7. In view of the above, the OSCE/ODIHR would like to make mention that this Note is without prejudice to any written or oral recommendations and comments to the criminal procedure legislation of the Republic of Armenia that the OSCE/ODIHR may make in the future. 3. EXECUTIVE SUMMARY 8. The Concept Paper is a progressive and well-drafted policy document which for the most part meets international standards on the protection of human rights in criminal proceedings. To ensure the Concept Paper’s full compliance with relevant international law, it is recommended as follows: A. During discussions on a new Criminal Procedure Code, policy-makers should also take into consideration: [par 16] 1. the role and regulation of “operative intelligence activities”; 2. the use of information obtained through administrative/prosecutorial inspections; 3. the introduction of habeas corpus proceedings; and 4. the role of the police in criminal procedures. B. To engage in additional discussions on the advisability and advantages of: [par 17] 1. the division of prosecutorial functions between prosecutor and investigators; 2. retaining two forms of pre-trial proceedings (inquest and preliminary proceedings; 3. the formal instigation of a criminal case. C. When drafting provisions on alternatives to the normal course of proceedings, such as “discretionary criminal prosecution” or “simplified preliminary investigation”, to provide detailed and effective safeguards for the rights of all participants in proceedings; [par. 19] D. To reconsider the rule making recourse to simplified proceedings dependant upon on the victim’s approval; [par. 20] E. To consider introducing, instead of the institution of procedural witnesses, a procedure requiring the attendance by defence counsel in investigative actions, as way to protect the rights of the accused and to prevent abuses by criminal investigation bodies; [par. 21] F. In regulating the use of detention on remand, to ensure full respect for the right to liberty and security of person, while at the same time taking into account the exigencies of criminal proceedings; [pars. 22-26] G. To reconsider the proposal to weaken the procedural status of the victim’s successor; [par. 27] and H. To allow detention of a suspect for up to 10 days, instead of automatically imposing a 10-day detention term. [par 28] 4 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia 4. ANALYSIS AND RECOMMENDATIONS 4.1. Preliminary Remarks 9. From the outset, the Commission set up to draft the new Criminal Procedure Code should be praised for having commenced its work by developing a Concept Paper on the Reform of the Criminal Procedure Legislation. The drafting of such policy-setting documents at the preliminary stages of the legislative process helps ensure a comprehensive and integrated approach to drafting legislation, and is especially important in the preparation of complex legislative texts such as the Criminal Procedure Code. 10. It is also commendable that the Commission has decided to procure international expertise and assistance already at the policy-making stage. Consultation at the stage of policy formation – i.e., prior to a draft legislative text being prepared for parliamentary consideration – is particularly effective for meaningful consideration of international expertise. At such preliminary stage, it is institutionally easier to take account of available international expertise and relevant best practices, as such discussions take place before there is a firm internal consensus on policy and legislative text. 11. At the same time, it is worth recalling that the full implications of a legislative concept or initiative, as a rule, do not become apparent until policy is translated into a specific legislative text. Only then could a comprehensive assessment be made of such matters as, for instance, the separation of powers between the investigative, prosecutorial and judicial authorities, or the scope of prerogatives of inquest and investigation bodies. It is therefore crucial that adequate consultation with the engaged stakeholders continues throughout the stages of the legislative drafting process. 4.2. Analysis of the Concept Paper 12. The OSCE/ODIHR notes that on the whole, the Concept Paper seeks to promote many internationally recognized principles concerning the observance of human rights in the course of criminal proceedings. The document explains that, following years of incremental amendments to the 1998 Criminal Procedure Code, the Armenian authorities have now decided to develop a conceptually new Criminal Procedure Code. The new Code is to reflect relevant international law (particularly the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the ECHR”) and the case law of the European Court of Human Rights (hereinafter “the ECtHR”)), as well as established best practice. It aims to eliminate legislative inconsistencies and lacunae as well as some residual Soviet-era practices and institutions that were found to violate human rights. 13. The Concept Paper prescribes that the new Code, as compared to the existing one, shall generally provide greater clarity and precision in its legal provisions, and that the procedural status and the rights and prerogatives of various participants in criminal proceedings shall be prescribed through specific and detailed regulations. This is undoubtedly a positive undertaking, as the clarity 5 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia and precision of criminal legislation (substantive and procedural) are qualitative requirements enshrined in international law.4 14. The Concept Paper notes that in the course of past judicial reforms in Armenia, some fundamental principles of criminal procedure were prescribed also in the Judicial Code of the Republic of Armenia. The OSCE/ODIHR recalls that in the recent past, it has commented on specific procedures prescribed by both the Criminal Code and the Judicial Code of Armenia,5 recommending greater clarity and precision concerning those procedures with dual legal basis. The OSCE/ODIHR reiterates that in the interests of legality and foreseeability, all criminal procedure matters should be prescribed in clear and precise terms, and ideally, be contained exhaustively in the Criminal Procedure Code. 15. The Concept Paper proposes a series of commendable amendments to the currently existing criminal procedure legislation. The stated aims of the proposed changes concern the following: strengthening elements of adversarial proceedings; ensuring equality of arms; expanding the rights of the defense; ensuring a better separation of procedural functions between the police, prosecutors, and the judiciary; strengthening the role of the court in all stages of criminal proceedings; enhancing court oversight over pre-trial proceedings; and streamlining the legislation regulating appeal and cassation proceedings. All these policy goals are commendable, and if properly transposed into law they should ensure an effective protection of human rights in the course of criminal proceedings. 16. At the same time, the Concept Paper is silent on a number of conceptual issues which may merit additional consideration by the policy-makers. Among these issues, inter alia, are the regulation of so called “operative intelligence activities” and their place in relation to criminal proceedings; the use of information obtained through administrative and prosecutorial inspections in criminal proceedings; introduction of a habeas corpus procedure; and the role of the police in criminal proceedings. 17. Other proposals contained in the Concept Paper suggest that its authors are keen to preserve some features of post-Soviet criminal procedure which may not provide sufficient protection of human rights guarantees. These include the division of prosecutorial functions between prosecutors and investigators; retention of two forms of pre-trial proceedings (inquest and preliminary investigation); and the formal instigation of a criminal case. These proposals merit additional expert discussions to determine the advisability of these approaches and the comparative advantages of alternative models. 18. Additionally, some provisions of the Concept Paper would benefit from re- consideration in order to fully meet international standards, as explained below. 4 See Korbely v. Hungary, ECtHR [GC] judgment of 19 September 2008 (application no. 9174/02), paragraph 70; and Kafkaris v. Cyprus, ECtHR judgment of 12 February 2008 (application no. 21906/04), paragraph 140. See also the UN General Comment to Art. 29 ICCPR, paragraph 7. 5 See the OSCE/ODIHR Note on Modifications to Armenian Criminal Legislation Related to Acts of Contempt of Court (Opinion-Nr.: CRIM – ARM/162/2010, of 23 September 2010), available online in English at http://www.legislationline.org/ . 6 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia 19. In Section 1 on “Pre-Trial Proceedings”, the “discretionary criminal prosecution” and the “simplified preliminary investigation”, appear as time- saving and cost-effective alternatives to regular investigations. One potential concern with such procedures is that they may open the door for undue prosecutorial discretion or abuse (especially considering that “discretionary criminal prosecution” may be applied also to medium-gravity offences). To prevent such potential abuse, these special procedures need to be circumscribed by adequate procedural safeguards, which may include providing the victim with a right to challenge in court the prosecutor’s decision to refrain from instituting criminal proceedings (for instance, following the German model of Klageerzwingugsverfahren), or providing for the possibility of subsidiary prosecution. Such procedural safeguards should be worked out in detail when drafting the text of the Code. 20. Section 1 on “Pre-Trial Proceedings” also proposes to make recourse to simplified proceedings dependant upon the victim’s approval. Notwithstanding all due respect for the victim and his or her procedural status, affording the victim a veto over the use of simplified proceedings may very often frustrate the primary objective of the simplified procedure, which is to honour defendant’s cooperation by the promise of a more lenient sentence. That provision could therefore be re-thought. Instead, the drafters may consider the introduction, in addition to the simplified proceedings, of some victim-friendly restorative justice schemes. 21. Section 1 on “Pre-Trial Proceedings” further proposes to abolish the institution of procedural witnesses. This reform is commendable, as procedural witnesses have proven rather ineffective in many jurisdictions. Instead, attendance by defence counsel in investigative actions can be a more effective way to protect the rights of the accused and to prevent abuses by the criminal investigation bodies. What is more, for certain procedures such as searches in lawyers’ offices or medical institutions, even additional safeguards might be necessary.6 22. Section 2 on “Measures of Restraint” proposes the introduction of new restraint measures such as home arrest and placement under police supervision. The introduction of new alternatives to detention is laudable, but the rule stated in paragraph 3 of the same section – that the same grounds should not be applicable for both detention and other measures of restraint – raises some concerns. The ground of preventing the repetition of offence, or the tampering with evidence, for instance, may justify detention in one case, but could also serve as a ground for home arrest in another case. If other restraint measures are made applicable only on grounds different from those justifying detention, then there is a real risk that they will not serve as alternatives to detention, which could result in further restriction of liberty. 23. Section 2 on “Measures of Restraint” further contains several provisions which apparently aim at eradicating the Soviet-era legacy of detention being requested by the prosecution, and ordered by the court, through motions and orders which contain only stereotypical and scant reasoning. Ensuring that detention is ordered only in cases where relevant and sufficient reasons are adduced to establish its necessity, is a commendable goal and also a 6 See, for instance, Niemietz v. Germany, ECtHR judgment of 16 December 1992 (Application no. 13710/88). 7 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia requirement under international law.7 At the same, some of the means by which the Concept Paper proposes to pursue this goal may be overly exigent and result in unintended deleterious effects. 24. Thus, it is noted that the measure described in par 4 of Section 2 on measures of restraint seeks to address repeated motions for detention, in those cases where such motions are based on identical grounds to prior motions that have been rejected. While the attempt to eradicate repetitive or even frivolous motions is well recognised, the matter certainly warrants further consideration. That is, other means of curtailing repetitive and frivolous motions should also be considered and the court should be given the requisite flexibility to review and decide on a case by case basis. 25. Further, Paragraph 5 of Section 2 provides that “[t]he detention term may not be prolonged on the basis of the same arguments that were used in imposing the previous detention term”. Such a rule would seem to pursue a legitimate aim of preventing superficially-argued and poorly-substantiated motions on detention.8 However, a blanket prohibition on the prolongation of detention based on the arguments used to order the previous detention may be overly broad. The proposed rule would make sense in cases where, for example, detention is ordered based on the risk of tampering with evidence; there, the risk of influencing witnesses or co-defendants – though originally genuine – may gradually diminish or disappear altogether as criminal proceedings develop, testimonies are taken and investigations are brought to completion.9 At the same time, though, especially in complex cases requiring multifaceted and prolonged investigations, it may be sometimes inevitable to have to extend a defendant’s detention based on the same grounds and arguments as those used in the previous detention order – if they continue to be genuinely valid. For instance, in cases involving organized crime, the risk of the defendant fleeing or re-offending can remain genuine for more than just the period of one detention order, and if indeed persistent – and sufficiently established by the prosecution – the same ground(s) should be admissible when considering the extension of a detention order. Rather, the rule should say that detention cannot be extended solely based on the same arguments that were used to order the previous detention term.10 Such a phrasing would more accurately reflect the exigencies of international law.11 The Code could also expressly prescribe that, in the absence of relevant and sufficient reasons adduced by the prosecution, the preventive measure of detention cannot be ordered. 7 See Art. 5(3) ECHR and Art. 9(3) ICCPR. 8 See Chapter 1 of the Final Report from the Trial Monitoring Project available on the OSCE /ODIHR website under http://www.osce.org/documents/odihr/2010/03/42944_en.pdf. 9 See Tomasi v. France, ECtHR judgment, 27 August 1992 (application no. 12850/87), paragraphs 92- 95; Kemmache v. France, ECtHR judgment of 27 November 1991 (application nos. 12325/86; 14992/89), paragraph 54; Muller v. France, ECtHR judgment of 17 March 1997 (application no. 21802/93), paragraph 40. 10 See also recommendation 15e at p. 90 of the Final Report from the Trial Monitoring Project available on the OSCE /ODIHR website under http://www.osce.org/documents/odihr/2010/03/42944_en.pdf. 11 The ECtHR has held that “[t]he persistence of a reasonable suspicion that the person arrested has committed an offence is a conditio sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices”, and thus a continued detention should be justified with other “relevant and sufficient” grounds. See Musuc v. Moldova, ECtHR judgment of 6 November 2007 (application no. 42440/06), paragraph 39. 8 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia 26. Paragraph 12 of Section 2 on “Measures of Restraint” proposes to make bail applicable in all cases, irrespective of the severity of the offence incriminated. Such reform is essential and indispensable for bringing the Armenian criminal procedure legislation in line with the requirements of international law.12 The restriction against allowing bail in cases involving grave crimes should therefore be removed from the Armenian criminal procedure legislation, just as it was repealed from the legislation of other former-Soviet states which have acceded to the ECHR. 27. Section 4 on “Legal Status of Participants in Proceedings” proposes to strengthen the procedural status of the victim by, among others, providing for the assistance of a legal representative not only during the victim’s interview but in all procedural actions performed with the victim’s participation. This is a commendable reform, albeit one which may entail substantial costs. Drafters may wish to reconsider, however, their position with respect to the so-called indirect victim (victim’s successor) in the cases where the direct victim has died. If the procedural status of the victim is strengthened and the victim becomes a more active participant in proceedings, it would seem unreasonable to deprive the relative of the deceased of an opportunity to shape the process. 4.3. Consideration of Conceptual Questions 28. The first Conceptual Question proposes a 10-day term for holding a suspect detained, which period may then be extended by the court for up to one month, provided that the investigator so requests through a reasoned decision. This proposal would appear to not directly violate international law, provided that the initial 10-day detention is also ordered by a court of law, and provided as well that there is the requisite reasonable suspicion that the suspect has committed an offence, and that his or her detention is indeed indispensable. At the same time, the automatic imposition of a 10-day detention term may deprive the judiciary of the necessary flexibility to make decisions based on the individual circumstances of each case. Thus, allowing detention of up to 10 days would appear to be a better solution from a human rights - based perspective. 29. The second Conceptual Question stipulates that in addition to the participation of the defense counsel in the “confrontation,” the right of the defense counsel to ask questions may be prescribed if the right of the accused to demand confrontation with a person testifying against him and to pose questions to such person has been stipulated. This proposal is welcome in so far as it aims to ensure genuine equality of arms in the course of criminal proceedings. 30. The third Conceptual Question asks whether the victim or his proxy or representative should have the right to participate in a hearing on imposing detention as a restraint measure or reviewing a motion to prolong the detention term, given that the draft provides that the hearing shall be public and that they shall have the right to be present at the hearing. Generally, it should be borne in mind that detention hearings “should in principle meet, to the largest extent 12 A general rule prohibiting bail in cases involving serious charges and which excludes a priori the possibility of any consideration by the court of releasing the defendant on bail, violates that person’s right to liberty as it effectively removes the judicial control over detention in that particular category of cases, in violation of Article 5(3) of the ECHR. See S.B.C. v. UK, ECtHR judgment of 19 June 2001 (application no. 39360/98), paragraphs 22-23. 9 OSCE/ODIHR Note on the Concept Paper on the Reform of Criminal Procedure Legislation in Armenia possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial”,13 which include such principles as adversarial proceedings and equality of arms. Some countries provide in their criminal procedure legislation that the hearings on detention are held in public session, as a general rule.14 Allowing victim’s participation on the basis of a substantiated prosecutor’s motion may be considered as a solution which strikes the necessary balance in this regard. [END OF TEXT] 13 See Shishkov v. Bulgaria, ECtHR judgment of 9 January 2003 (application no. 38822/97), paragraph 77. 14 See, for instance, Art. 145 of the Criminal Procedure Code of France (in force from 2 March 1959, consolidated version as of 1 October 2010), which provides that the hearing on detention shall take place in open court, unless the public prosecutor, the person under judicial examination or his defense counsel request that the hearing be closed if publicity may hinder the specific inquiries needed by the investigation, or threaten personal dignity or a third party's interest. 10