CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION
Second periodic report of States parties due in 1998
[15 June 1999]
* The initial report submitted by the Government of Armenia is contained in document CAT/C/24/Add.4/Rev.1; for its consideration by the Committee, see documents CAT/C/SR.245 and 246, and Official Records of the General Assembly, Fifty‑first Session, Supplement No. 44 (A/51/44), paras. 84‑101.
1. This report is submitted in accordance with article 19, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was ratified by the Republic of Armenia on 9 July 1993 and entered into force on 23 September 1993.
2. Armenias report on the application of the provisions of the Convention has been drawn up on the basis of information received from the Ministry of Justice, the Ministry of Internal Affairs and National Security, the Court of Cassation and the Office of the Procurator‑General.
3. Since the presentation of its initial report, Armenia has been carrying out far‑reaching legislative reforms aimed at providing legal guarantees concerning respect for individual rights and fundamental freedoms.
4. The Constitution of the Republic of Armenia was adopted on 5 July 1995. Chapter II (arts. 14‑48) is headed Fundamental human and civil rights and freedoms. It sets forth the right of everyone to life (art. 17).
5. Under the Constitution, until such time as it is abolished, the death penalty may be prescribed by law as an exceptional punishment for particularly heinous crimes. The draft of the new Penal Code provides for the abolition of the death penalty and a general moderation of other penalties. The current Penal Code prescribes the death penalty for a number of heinous crimes (for instance, in articles 59, 60, 99 and others).
6. Article 19 of the Constitution lays down that No one may be subjected to torture or to cruel or degrading treatment or punishment. No one may be subjected to medical or scientific experiments without his or her consent.
7. The legal system and the regulations governing the operation of judicial institutions lay down conditions conducive to the effective prevention of any resort to torture or other inhuman or degrading treatment in the territory of the Republic of Armenia.
8. Under article 92 of the Constitution, the courts of general jurisdiction are the courts of first instance, the appeal courts and the Court of Cassation. Economic, military and other types of court provided for by law may be established in the country. The establishment of extraordinary courts is forbidden.
9. Armenia has subscribed to and ratified 43 international human rights treaties and conventions, as well as 10 such treaties and conventions in the framework of the Commonwealth of Independent States (CIS).
10. Article 6 of the Constitution provides that International treaties that have been ratified form an integral part of the legal system of the Republic. If such a treaty contains provisions which differ from those laid down in legislation, the provisions of the treaty shall apply.
11. The courts and the Procurator‑General are the authorities competent to examine matters relating to the sphere of application of the Convention. A similar obligation is also borne by the police authorities responsible for the protection and security of citizens and, in particular, by the Department of Correctional Labour at the Ministry of Internal Affairs and National Security.
12. In accordance with the requirements of article 1 of the Convention, the elements of the offence referred to in article 126 (Torture) in the draft of the new Penal Code essentially reflect the definition of torture set out in the Convention.
13. Article 126 in the draft of the new Penal Code stipulates that the use of torture is an offence. In contrast to the existing Penal Code, in which the concept of torture is not elucidated (art. 110), article 126 of the new Code establishes the offence of actions involving the causing of suffering by means of periodic blows, or other actions involving force.
14. Under article 126, part 1, of the draft Penal Code, Causing suffering by means of periodic blows, or other actions involving force, shall be punishable by deprivation of liberty for up to three years, if such action has not produced the consequences referred to in articles 119 and 120 (intentional action causing grave consequences to health and intentional action causing moderate harm to health).
15. Under article 126, part 2, of the Penal Code, such actions shall be punishable by deprivation of liberty for a period between three and seven years if they are committed (a) against two or more persons; (b) against a person or his or her relatives in connection with his or her performance of official duties or public duty; (c) against a minor, or a person who is materially or otherwise dependent on the offender, or against a person who has been kidnapped or a hostage; (d) against an obviously pregnant woman; (e) by a group of persons, by prior agreement; (f) in a particularly brutal manner; or (g) as a result of hatred based on nationality, race or religion or motives of religious fanaticism.
16. It is noted in article 126 of the draft Penal Code that torture covers not only physical but also moral suffering. The article provides for punishment in the form of deprivation of liberty for a period between three and seven years.
INFORMATION RELATING TO EACH ARTICLE OF PART I OF THE CONVENTION
17. Article 9, part 3, of the Code of Penal Procedure, entitled Respect for rights, freedoms and individual dignity, provides that during criminal proceedings no one must be subjected to degrading treatment or be held in humiliating conditions. Article 9, part 4, lays down that it is forbidden to oblige anyone to participate in proceedings which are degrading.
18. Under article 11, part 7, of the Code of Penal Procedure, no one must be subjected to torture, unlawful physical or psychological pressure, including that involving medical means, hunger, exhaustion, hypnosis, deprivation of medical care or any other inhuman treatment. The same part of the article states that it is unlawful to obtain testimony by means of force, threats, deception, violation of rights or any other unlawful actions.
19. Under articles 138 and 139 of the draft Penal Code, kidnapping, depriving individuals of their liberty or restricting it, when accompanied by threats to their lives or health, and also by the causing of suffering, are considered to be more serious offences than under the current Code.
20. Under article 45 of the Constitution, some human and civil rights and freedoms may be temporarily restricted, in accordance with the procedure laid down by law, in time of war or in the circumstances referred to in article 55, part 14, of the Constitution, which stipulates that the President shall, in the event of immediate danger threatening the constitutional order, and following consultations with Chairman of the National Assembly and the Prime Minister, take the steps dictated by the situation and address the people on the subject. However, various articles are not affected by this provision, including article 19 of the Constitution, which prohibits the use of torture and other inhuman or degrading actions.
21. In this way, no exceptional circumstances, whether a state of war, a war situation or any other public emergency, can serve as a justification for torture. Specifically, certain restrictions on rights and freedoms referred to in article 44 of the Constitution extend only to articles 23‑27 of the Constitution and do not limit the validity of article 19 in any way.
22. Article 45 of the General Part and the corresponding articles of the Special Part of the draft Penal Code contain a provision whereby an order from a higher authority concerning the use of torture must be deemed to be unlawful, while criminal proceedings must be initiated against any person who has issued such an order or instruction. Although article 45, parts 2 and 3, contain no specific reference to the use of torture in carrying out a clearly unlawful order, this is nevertheless understood in the concept and wording of the article.
23. Under article 44, part 2, of the draft Penal Code, Any person intentionally committing an offence when carrying out a clearly unlawful order or instruction shall be held criminally responsible.
24. Article 44, part 3, lays down that a person failing to carry out an order or instruction known to be unlawful shall not be held criminally responsible.
25. The draft Penal Code provides that officials bear responsibility for the misuse of their official position (art. 300) and exceeding their official authority (art. 301), while the most serious case is that where an offence is committed with the use of arms or special instruments or involves the use of force.
26. In accordance with the requirements of the Convention, article 15 of the draft Penal Code establishes a procedure for extradition of persons who have committed an offence.
27. Under article 15, part 1, of the draft Penal Code, citizens of Armenia who have committed an offence on the territory of another State are not subject to extradition to that State.
28. Article 15, part 2, of the draft Penal Code lays down that foreign citizens and stateless persons who have committed an offence outside Armenia and are present on Armenian territory may be extradited to a foreign State for the purposes of criminal prosecution or to serve a sentence in accordance with international treaties entered into by Armenia.
29. On 27 September 1993 the Armenian Parliament adopted a decision to give the Procurator‑General the right to sign extradition agreements with the procurators of other States. The procedure for the administrative eviction, expulsion and extradition of foreign citizens is governed by the Juridical Situation of Foreign Citizens in Armenia Act of 17 June 1994.
30. If the legislation of the State demanding extradition provides for the death penalty, the requesting State is required to give a guarantee that the death penalty will not be applied as a condition of extradition (Penal Code, art. 16, para. 3).
31. Under article 16, paragraph 3, of the Penal Code, no one may be extradited to a foreign State if there are serious grounds for believing that he or she risks torture there.
32. Where the Armenian authorities refuse to extradite an offender who has committed an offence on the territory of a foreign State, criminal proceedings shall be pursued in accordance with Armenian legislation (art. 16, para. 4).
33. Under article 474 of the Code of Penal Procedure, the relations between courts, procurators, investigators and bodies conducting pre‑trial investigations in Armenia and those in foreign States are founded on the provisions of international agreements for judicial assistance.
34. Under this provision, issues connected with extradition are governed by agreements concluded between Armenia and interested States. Armenia has signed bilateral agreements of this type with Bulgaria, Romania and Georgia.
35. Under Armenian legislation the articles of the Penal Code can be applied to Armenian citizens who have committed offences outside the country in cases where the acts they have committed are recognized to be offences in the State on whose territory they were committed, and where such persons have not been tried in the foreign State. When such persons are tried, the punishment applied cannot exceed the maximum penalty provided for in the legislation of the foreign State on whose territory the offence was committed.
36. Article 5 of the draft Penal Code provides that all persons who have committed offences are equal before the law and face criminal proceedings irrespective of their nationality, race, sex, religion, political or other views, social origin and property or other status.
37. Under article 59 of the draft Penal Code, aggravating circumstances include the commission of an offence for reasons of hatred based on nationality, race or religion. Similar references appear in articles 148 and 228, as well as in other articles of the draft Code.
38. Article 19, part 1, of the draft of the new Code for the Execution of Criminal Penalties, which will enter into force following consideration and adoption by the National Assembly, replacing the existing Corrective Labour Code, contains a proposal that judicial supervision of institutions enforcing penalties should be enshrined in legislation, and notes that such institutions inform the court which sentenced each prisoner where he or she is serving his or her sentence.
39. The draft Penal Code contains a separate section VIII which establishes offences against individuals.
40. Aside from the Penal Code articles mentioned above, which directly prohibit the use of torture, other articles impose the ban indirectly. Article 9, part 1, for example, provides that respect for the rights, freedoms and dignity of the individual is mandatory for all organs and participants in criminal proceedings.
41. The draft Penal Code contains a number of provisions which prohibit the use of unlawful means. For example, it is forbidden to detain anyone without lawful justification, or to exceed the period of detention stipulated in the law.
42. Under article 23 of the draft Penal Code, criminal prosecution of a person known to be innocent is an offence, punishable by deprivation of liberty for a period between 3 and 10 years.
43. Under article 328 of the draft Penal code, the use of force by a judge, a procurator, an investigator or a body conducting an initial inquiry in order to obtain testimony from a suspect, an accused person, a defendant, a victim or a witness is punishable under the criminal law. Part 2 of the article provides that aggravating circumstances include actions involving humiliation or torture or other actions involving force. A person committing this offence, if it has produced serious consequences, is liable to punishment in the form of deprivation of liberty for a period between 6 and 12 years.
44. Article 336 of the draft Penal Code provides that it is an offence for a judge to make a knowingly unjust ruling. Where the ruling related to the unlawful deprivation of liberty, or had serious consequences, this offence is punishable by deprivation of liberty for a period between three and eight years.
45. Under article 333 of the draft Penal Code, knowingly unlawful detention or knowingly unlawful remand in custody is a criminal offence, punishable by deprivation of liberty for a period of up to four years, or between three and eight years if it had serious consequences as a result of negligence.
46. Under article 3, part 1, of the Code of Penal Procedure, unless otherwise provided in international treaties entered into by Armenia, on the territory of Armenia, investigations are carried out in accordance with the articles of the Code regardless of the place where the offence was committed.
47. Under article 3, part 2, of the Code of Penal Procedure, offences committed outside Armenia on board an aircraft or seagoing or river vessel lawfully flying the flag or a symbol of Armenia are to be investigated in accordance with the provisions of the Code.
48. Foreign citizens and stateless persons who have committed offences outside Armenia bear criminal responsibility under the Penal Code of the Republic when (a) they have committed an offence referred to in international treaties entered into by Armenia, or (b) the offence was directed against the interests of Armenia or its citizens, if they have not been tried in a foreign State and are the subject of criminal proceedings in Armenia (Penal Code, art. 14).
49. Issues involving the criminal responsibility of diplomats located on Armenian territory are governed by the 1961 Vienna Convention on Diplomatic Relations, bilateral agreements and also articles 444‑449 of chapter 51 of the Code of Penal Procedure, entitled Special characteristics of proceedings against persons who enjoy privileges and immunities laid down in international treaties.
50. The Code of Penal Procedure sets out in detail the procedure for instituting criminal proceedings (chap. 3), stipulating that bodies conducting initial inquiries, investigators and procurators have an obligation, within the limits of their competence, to initiate criminal proceedings in any case where there is evidence that an offence has been committed, and to make use of all means provided for in the law to expose offences and those who have perpetrated them (art. 27).
51. Article 128 of the Code lays down the procedure whereby a person may be detained, when: (a) he or she is suspected of committing an offence which is punishable by assignment to a disciplinary battalion, short‑term rigorous imprisonment, or deprivation of liberty for life or for a specific period, or (b) the accused has failed to comply with the preventive measures taken against him or her.
52. A person may be detained on the basis of: (a) direct suspicion that he or she has committed an offence; (b) a decision taken by a body responsible for criminal prosecutions (art. 128, part 3, of the Code). The period of custody may not exceed 96 hours from the time of arrest. During this time, the person must be charged (art. 129, part 2, of the Code).
53. Chapter 26 (arts. 188‑201) of the Code lay down the procedure for the conduct of preliminary investigations.
54. In the case of applications from judicial bodies or bodies responsible for criminal prosecutions in other States, and in the conduct of specific investigatory or judicial activities, the legislation of foreign States relating to criminal procedure may be followed if the international treaties entered into by Armenia so provide (art. 3, part 3, of the Code).
55. The Constitution emphasizes that Everyone has the right to liberty and the right to security of person. No one may be subjected to detention or search except as prescribed by law. A person may be detained only by court order and in accordance with the procedure laid down by law (art. 18).
56. In every case in which a foreign national is held in custody, the diplomatic representatives of the country in question are promptly notified. The Armenian Code of Penal Procedure provides not only for the notification of a representative of the country concerned, but also for his or her presence.
57. In accordance with article 15 of the draft Penal Code it has been laid down that Citizens of Armenia who have committed an offence on the territory of another State shall not be extradited to that State. Persons who have committed an offence outside Armenia, aliens who are present on Armenian territory and stateless persons may be extradited to a foreign State for the purposes of criminal prosecution or to serve a sentence, in accordance with international agreements entered into by Armenia.
58. The Procurator‑General of Armenia has the right to revoke decisions taken by bodies conducting preliminary investigations.
59. Armenian legislation guarantees fair treatment at all stages of criminal proceedings. Specifically, in criminal proceedings no one may be detained, subjected to a search, held in custody, tried, called for questioning or subjected to other forms of procedural coercion, or suffer other restrictions of his or her rights and freedoms, otherwise than on the basis of and in accordance with the procedure laid down by law (art. 11 of the Code of Penal Procedure).
60. Article 8 of the Code of Penal Procedure provides that all are equal before the law and shall be protected by the law without discrimination.
61. In all cases, the provisions of the Code of Penal Procedure are applied in such a way as to ensure that the person being prosecuted enjoys all the statutory safeguards at the stages of initial inquiry, investigation and judgement without any discrimination.
62. Extradition is carried out on the basis of article 15 of the Penal Code, except as otherwise provided in international treaties.
63. The institution which receives the request has an obligation to extradite a person located on the territory of the State in question so that criminal proceedings may be brought or a court ruling enforced against that person (art. 480, part 1, of the Code of Penal Procedure).
64. Under article 480, part 2, Extradition for the purposes of bringing criminal proceedings shall be carried out for acts which are punishable both in the requesting State and in the requested State by deprivation of liberty for a period of not less than one year.
65. Extraditable offences are those punishable, under the laws of the party submitting or receiving the extradition request, by a penalty of not less than one years imprisonment. If the person concerned has already been sentenced to a penalty in the territory of the party requesting the extradition, extradition may take place where the said penalty is for a period of not less than six months imprisonment.
66. Article 477 of the Code of Penal Procedure provides for letters of request to be executed by a court, a procurator, an investigator or a body conducting initial inquiries. Under article 477, part 2, in executing letters of request the procedural rules of foreign States may be applied if an international treaty concluded with that State so provides.
67. In executing letters of request for which provision is made in international treaties, a representative of the appropriate institution of the State in question may be present (art. 477, part 3).
68. After signing the Convention, Armenia and the CIS States signed the 1993 Minsk Convention on mutual assistance in civil, family and criminal proceedings and links between judicial bodies. The Convention deals, inter alia, with extradition issues. The parties undertake to extradite to one another, in keeping with rules set out in the Convention, persons who are facing prosecution in connection with an offence or being sought in order to serve sentences imposed by judicial bodies in the requesting countries.
69. The Code of Penal Procedure contains provisions permitting mutual legal aid among investigators and courts through international conventions.
70. It also contains provisions concerning foreign witnesses or experts summoned from abroad who appear voluntarily before the courts. It is not permissible to prosecute such persons, detain them or hold them in pre‑trial detention for the offence forming the subject of the criminal proceedings (art. 476 of the Code of Penal Procedure).
71. In Armenia human rights issues feature in the curricula for study, training and retraining of the staff of law enforcement agencies. Retraining courses are held periodically for staff of the Ministry of Internal Affairs and National Security. A course is currently under way on problems arising during criminal proceedings and application of the rules of the Code of Penal Procedure. Special attention is devoted to the issue of the inadmissibility of torture, and in particular the practice of using force to obtain statements from witnesses.
72. The draft Penal Code modifies the conditions governing the imposition and enforcement of custodial penalties. It specifies the rights and obligations of accused persons, while, at the same time, respecting rules laid down by the United Nations, such as the segregation of detained minors, women and perpetrators of offences by negligence, strengthening of the role of the judge and diminution of that of the procurator in relation to surveillance of prison conditions.
73. Questions concerning the procedure for, and duration of, custody, pre‑trial detention and investigation and the time‑limits for the lodging of appeals are regulated by the Code of Penal Procedure. Under article 62 of the Code of Penal Procedure the body responsible for criminal investigations is not entitled to detain a suspect for more than 96 hours. The duration of preventive measures cannot exceed seven days.
74. The draft Code for the Execution of Criminal Penalties regulates the application of security measures to prisoners. Under article 64 of the Code, physical force and special instruments (handcuffs and straitjackets) or firearms may be used on prisoners if a convicted prisoner has manifested resistance towards a member of the Penalty Enforcement Administration, participated in mass disorder, taken hostages or attacked citizens.
75. Article 11, part 3, of the draft Code for the Execution of Criminal Penalties contains a provision (which is lacking in the current Corrective Labour Code) whereby Prisoners cannot, even with their consent, be subjected to medical or other experiments which are dangerous to life and health.
76. In circumstances provided for in the law, a court shall consider complaints from prisoners and other persons regarding the actions of institutions and bodies enforcing penalties (art. 19, part 3, of the Code for the Execution of Criminal Penalties).
77. Under article 11, part 4, Prisoners shall have the right to submit proposals, statements or complaints to the administrations of bodies enforcing penalties, higher bodies, courts, the procurator, other bodies in the State administration and public organizations, as well as to international intergovernmental and non-governmental human rights organizations if all domestic remedies have been exhausted.
78. Currently under preparation is a Police Act, chapter IV of which is devoted to the circumstances in which physical force, special instruments and firearms as well as means of individual protection may be used. Article 16, part 1, of the draft provides that a police officer must give a warning concerning the use of a weapon, a special instrument or physical force, allowing sufficient time for lawful demands to be complied with and commission of the offence to cease, except in cases where refraining from their use would pose an immediate threat to the life and health of the police officer or could result in other serious consequences, or where the circumstances make the issue of a warning impossible.
79. Article 16, part 2, provides that in the light of the situation, a police officer must strive to cause minimum harm, while under article 16, paragraph 3, a police officer must provide first aid to persons who have suffered bodily harm as a result of his or her actions.
80. The Office of the Procurator monitors the lawfulness of pre‑trial investigations. The cases are forwarded to the courts after the procurator has confirmed the indictment.
81. The conditions of pre‑trial detention and the treatment of detainees are constantly monitored by the Ministry of Internal Affairs and National Security and the office of the Government Procurator‑General.
82. Individuals are considered guilty after the corresponding guilty sentence has become final. An accused person has the right to be informed of the accusation against him or her, and also to make statements and furnish proof, and to have counsel (art. 10 of the Code of Penal Procedure).
Articles 12 and 13
83. Anyone claiming to have been subjected to torture or other inhuman or degrading treatment during the pre‑trial investigation has the right to lodge a complaint with the Office of the Procurator. Any detainee who has suffered such treatment in places of detention has the right to lodge a complaint with the head of the administration, and also with the appropriate procurator.
84. A postal and telephone service known as Trust has been set up in each prison camp, where convicted prisoners can communicate directly with the head of the corrective labour institution and report on all infringements of their rights and freedoms. There is a two‑way telephone link between convicted prisoners and their relatives ‑ an unprecedented development in the CIS.
85. In accordance with article 103, part 8, of the Code of Penal Procedure, every convicted prisoner has the right, in conformity with international treaties entered into by Armenia, to contact the appropriate inter‑State bodies for the protection of human rights and freedoms, if all means of legal defence provided for in the legislation governing criminal procedure have been exhausted.
86. Where torture or other degrading treatment is established to have occurred, the victim has the right to criminal indemnification for the harm sustained. Armenian legislation provides that anyone who has been unjustly convicted, detained or imprisoned is entitled to compensation. Specifically, under articles 66 and 67 of the new Code of Penal Procedure, a person unlawfully convicted and acquitted is entitled to compensation for unlawful pre‑trial detention, remand in custody, prosecution and conviction.
87. The compensation for such persons is intended to cover: (a) restoration of salary and other forms of income; (b) reimbursement of court costs paid; (c) compensation for payment for counsels fees; (d) compensation for confiscation or sequestration of property and any fine paid during execution of the sentence.
88. An acquitted person is entitled to recover fully his or her job and grade, housing and other rights.
89. Under article 67 of the Code of Penal Procedure, a judge, procurator, investigator or person conducting an inquiry must make clear to an acquitted person his or her right to receive compensation for unlawful conviction, pre‑trial detention and remand in custody, as well as his or her other rights.
90. On 14 June 1994 the Armenian Parliament adopted the Victims of Repression Act, under which conviction on political grounds, unlawful conviction, the use of medical methods and deportation are deemed to be repressive measures.
91. The Act restores citizenship, honours and/or citizens rights to those who suffered from such repression during the Soviet era. In particular, the Act grants various benefits ‑ free utilities, free transport, housing loans on favourable terms, etc. ‑ to persons who were victims of repression during the Soviet era, as well as their families.
92. This Act lays down a procedure for compensation and restoration of civil and political rights for the victims of repression during the Soviet era.
93. Chapter XII of the Code of Penal Procedure is devoted to protection of persons involved in criminal proceedings.
94. In accordance with article 98 of the Code of Penal Procedure, on the obligation to take steps to protect victims, witnesses, accused persons, defence counsel and other participants in criminal proceedings, it has been laid down that the adoption of protective measures is mandatory if a person taking part in criminal proceedings or his or her close relatives are threatened with physical violence or destruction of property. A decision to take protective measures is taken promptly ‑ no later than 24 hours after the threat has been notified.
95. The Code of Penal Procedure regulates in detail issues relating to questioning of witnesses, participants in proceedings, suspects and accused persons.
96. Citizens have the right to lodge with a higher body, and also with the office of the procurator and the courts, complaints concerning the use of torture or other cruel, inhuman or degrading treatment against them.
97. Among means of protection for victims, witnesses, accused persons, defence counsel and other persons participating in criminal proceedings, mention should be made of an official warning by the court or the procurator concerning the possibility of prosecution of anyone who threatens to use force or other actions forbidden under the criminal law (art. 99 of the Code of Penal Procedure).
98. Under article 105, part 1, of the Code of Penal Procedure, material obtained by means of the use of force, threats, deception, personal humiliation or other unlawful acts may not be used as evidence.
99. The draft Penal Code includes a special chapter, chapter 17, devoted to offences directed against life and health, which defines homicide, driving a person to suicide, intentional harm to health, beatings, etc. as offences, as well as a chapter containing provisions for the protection of the human and civil rights and freedoms set out in the Constitution (chap. 20).
 The Special Part of the new Penal Code of Armenia has been passed in second reading by the National Assembly (Parliament), while the general part has been passed in third reading.
 Has passed its second reading.
 Has passed its second reading.
 Ratified by Armenia on 6 October 1992.