Deputy of the RA Prosecutor General and head of “Nubarashen” Penitentiary were illegally imprisoned
00:00, June 6, 2011 | Press Release | Right to Fair Trial, Right to liberty and security | Detention Facilities
On May 30, 2011, the RA Criminal Court of Appeals satisfied the appeal filed by three Human Rights NGOs and confirmed that the Deputy of RA Prosecutor General and head of “Nubarashen” Penitentiary had illegally kept Sargis Poghosyan in custody from August 5 till September 1 of 2010.
After being identified in Armenia, RA citizen Sargis Poghosyan, who had been wanted by the USA law enforcement agency, was kept in custody at “Nubarashen” Penitentiary, without the Court’s resolution, only based on the instruction given by the Deputy of RA Prosecutor General.
It should be noted that “Civil Society Institute” NGO, “Armenian Helsinki Committee” NGO and Helsinki Citizens’ Assembly Vanadzor Office identified the case and claimed that the responsible incur liability, which was not processed by the Prosecutor General’s Office.
The human rights defenders applied to the RA Court of General Jurisdiction of Kentron and Nork-Marash Administrative Districts to oblige the RA Prosecutor General’s Office to initiate a case against the Deputy of RA Prosecutor General and head of “Nubarashen” Penitentiary. After the claim was rejected, the human rights defenders turned to the Criminal Court of Appeals with a claim to abrogate the resolution taken by the Court of First Instance.
The Court of Appeals satisfied the claim by considering it grounded, it abrogated the resolution taken by the Court of First Instance and obliged the RA Prosecutor General’s Office to eliminate the violations of a person’s rights and freedoms. The Criminal Court of Appeals satisfied the appeal based on the following reasons. Regarding the legitimacy of the detention, the RA Prosecutor General’s Office, as a legal justification of Sargis Poghosyan’s detention, stated that the detention was carried out to reach a final resolution to transfer him to the USA law enforcement agency. Part 3 of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not foresee a claim to be taken to Court.
The Court of First Instance also took this argument as basis regarding the legality of Sargis Poghosyan’s detention. The Criminal Court of Appeals considered it groundless, because, pursuant to Article 16 of the RA Constitution and article 136, 137, 280 of RA Criminal Procedure Code, the detention of a person is carried out based on the Court’s decree and the freedom and immunity of a person can be restricted solely upon decision of the court. Besides, the Criminal Court of Appeals has stated that Armenia and the USA have not signed an agreement of legal assistance of criminal cases and are correlated to each other in accordance with reciprocity of providing legal assistance during criminal cases. If there is no international agreement, then the transfer of the extradited person is regulated by Article 491 of RA Criminal Procedure Code in the following way: “1.When the extradition request of a person along with the decision (or its the copies) of arrest by a foreign country authorized body is received, the Prosecutor General, interrogator, or investigative body of RA, who received the request, should take measures to detain the extradited person as prescribed by the RA Criminal Procedure Code in case they don’t envision the implementation of the request without it. 2. Based on the first part of this resolution, the RA authorized court should take a decision of detaining a person at the presence of the extradited person”.
Whereas, in the case of S. Poghosyan, the RA requirements have not been retained: a request regarding the transfer of Sargis Poghosyan was presented not as prescribed by law, but as a result of an information request regarding the transfer options through the NCB of the RA Interpol. The resolution of the USA authorized court regarding the detention of S. Poghosyan was not attached to the transfer request.
In fact, no solicitation was submitted regarding the detention of Sargis Poghosyan, as prescribed by law. The RA authorized court did not try the case of Sargis Poghosyan’s incarceration and no detention resolution was made, instead, S. Poghosyan was kept in custody for a month solely based on the instruction of the Deputy of RA Prosecutor General.
Pursuant to part 10 of Article 141 of the RA Criminal Procedure Court, “The detainment unit administration shall immediately release detained persons without a court decision”, but it was not carried out. Moreover, the Criminal Court of Appeals also recorded that, according to the 02.08.2010 letter of the head of International and Legal Relations department of the RA Prosecutor General’s office, which was addressed to the head of the RA Foreign Ministry Consular Department, it was requested to inform the RA law-enforcement agency that Sargis Poghosyan was a RA citizen and he was not subject to transfer with an aim to incur criminal liability.
That is to say, before placing S. Poghosyan in “Nubarashen” Penitentiary based on the order of Deputy of RA Prosecutor General, the Prosecutor General’s Office had a discrete disposition regarding the impossibility of his transfer. Therefore, he was not detained to be transferred. The RA Criminal Court of Appeals stated that, while restricting Sargis Poghosyan’s right to freedom, the authorized bodies violated the guarantees stipulated by the RA Constitution and RA Criminal Procedure Court. As a result, S. Poghosyan was imprisoned and kept in custody, which brought about the violation of the constitutional principle of a person’s immunity.