(6-15 SEPTEMBER 2010) The Working Group on Arbitrary Detention of the United Nations Human Rights Council conducted a country mission to the Republic of Armenia from the 6h of September 2010 until today, following an invitation from the Government. The delegation was headed by myself, as the Working Group Chair-Rapporteur, and composed by one of the Working GroupÄs members, Mr. Mads Andenas and by two members of the Working GroupÄs Secretariat from the United Nations Office at Geneva. First of all I would like to express my gratitude to the Government of the Republic of Armenia for its invitation and for the full cooperation extended to the Working Group in the conduct of its mission. During the entire visit, the Working Group enjoyed the cooperation from the Government, including all the authorities it met with, who provided the delegation with all the necessary information and arranged all the meetings it requested. The delegation was able to conduct visits to detention facilities and to interview 153 detainees in private. The Working Group would also like to thank the representatives of the Armenian civil society, as well as representatives of international organizations, particularly the United Nations Development Programme (UNDP), for its support during the mission. During its fact-finding mission, the Working Group met with high-level officials from the Executive, Legislative and Judicial branches, including the Chairman of the Constitutional Court; the President of the Criminal Chamber of the Court of Cassation; the Chair of the Standing Committee on Protection of Human Rights and Public Affairs of the National Assembly; the Deputy Ministers of Foreign Affairs; Justice and Defence; the Deputy Prosecutor General; the First Deputy Minister of Health; and the Chief of Staff of the Police. It also held meetings with the Human Rights Defender (Ombudsman); the Chair and members of the Board of the Armenian Bar Association; with the Public Monitoring Group of Police Detention Facilities; with the Prison Monitoring Group under the Ministry of Justice; with magistrates of Courts of Appeals and first instance judges, as well as with former detainees. The Working Group also met with representatives of the United Nations country team. During its official mission the Working Group visited Nubarashen Prison, Artik Correction Facility, Goris Prison, Vardashen Prison, ÅYerevan KentronÆ Detention Facility, Erebuni Detention Facility, the Military Police Detention Centre in Yerevan, Abovyan Prisons for women and juveniles, the Yerevan Reception Centre for Migrants, Sevan Psychiatric Facilities and Vanadzor Psychiatric Facilities. The Working Group also paid two non-announced visits to police stations at Aparan and Goris and one to Sevan Prison. It interviewed prisoners and detainees in private in all of these facilities. The Working Group also tried to conduct, without success, a surprise visit to the special accommodation facility for arrivals in an irregular situation at the Yerevan International Airport. The Working Group would like to highlight the efforts carried out to reform the penal legislation, particularly the Criminal Procedure Code, which has been amended in order to put Armenian penal legislation in conformity with international standards for fair trial and due process of law. More than 200 amendments have been approved by the National Assembly during recent years. New amendments are now under consideration. The Working Group would also highlight the efforts to improve the physical conditions in the prisons and detention centres it visited, and particularly the good rapport between prisoners and detainees and penitentiary guards. During the private interviews it held, the Working Group did not receive any allegation of abuse of power or ill-treatment from prison guards. Thirty-three out of forty police detention centres have been refurbished. In addition, the Working Group was pleased to learn that detention centres and prisons are visited and monitored, on a permanent basis, by two different groups composed of non-governmental organization representatives: The Public Monitoring Group of Police detention facilities and the Prison Monitoring Group under the Ministry of Justice. Furthermore, the Working Group welcomes the work carried out by the Constitutional Court and the possibility that any citizen may have direct access to the Court. During the months elapsed of 2010, the Constitutional Court has received 354 constitutional recourses and complaints. The Working Group also commends the work being carried out by the Human Rights Defender (Ombudsman) who received and processed 5,200 complaints during 2009, and whose Office conducts regular and ad hoc monitoring of detention centers and prisons. The Working Group has taken note of the jurisprudence of the Constitutional Court and of the Supreme Court of Cassation giving effect to due process requirements based on international human rights law and national constitutional law and principles. During the mission, the Working Group received information that two persons died in detention while in police custody. According to the information received, they committed suicide. However, the Working Group considers that investigations by external, independent bodies are necessary, and inquests should be conducted on each case as soon the death takes places. At some prisons, the Working Group found overcrowding, poor sanitation, minimal medical care and a lack of sufficient ventilation. The Government must guarantee the right to safety of all prisoners. Overcrowding seems to facilitate corruption in prison in several ways, including payment for moving to less overpopulated cells. One main issue of concern to the Working Group is the lack of internal independence of the Judiciary. This affects the right to liberty of any citizen. It is not primarily lack of independence following from interference from branches of the State, but it is an absence of the necessary independence in the actions of magistrates and judges. They have the high responsibility of administrating Justice. To reach that noble objective, they must demonstrate that they are independent and impartial, giving the same rights and obligations to the different parties in the process and guaranteeing a fair trial, the due process of law and the rights of the accused. The principle of equality of arms between accusation and defence is one of the basic prerequisites of a fair trial. Magistrates and judges as a rule grant the requests from the prosecutor, and rarely those coming from the defense. Most of jurists interviewed, are of the view that sentences and other judicial decisions too closely follow the criteria imposed by the Prosecutors. Also some convicted prisoners were of the view that the judge had not acted as an independent and impartial authority but as a legal official at the same level, or even at an inferior level, than that of the Prosecutor. This has been aggravated by the fight against corruption currently carried out by the Government. Magistrates and judges seem to be self-limiting themselves in the application of justice, ordering harder penalties in fear of being perceived as not sufficiently firm in combating corruption, or, of being complicit in corruption. The form of judgments is another issue where the view is that most sentences and judicial resolutions are not sufficiently motivated. We are aware that the Supreme Cassation Court in a series of judgments has laid down requirements to the reasons to be given in judgments, and that this field of law is developing in order to satisfy international human rights standards and due process requirements. It was alleged that Prosecutors are more defenders of the State than defenders of society and of the law, following a principle of presumption of guilt, instead of a presumption of innocence. The courts are perceived more as a rubber stamp for the Prosecutor than as a defender of citizensÄ rights or due process guarantees. Prosecutors greatly overshadow defense lawyers during trials. This also seriously affects the legal profession. Many detainees interviewed stated that they have no need for the services of a defense lawyer because their services are, at the end of the day, not useful. These detainees maintain that it is more important to have good relations with investigators and prosecutors. Many detainees in remand did recognise the importance or the concrete benefits of having a defense lawyer The lack of confidence may yet be worse in the case of public defenders. Although the Government has made serious efforts to guarantee legal counsel at public expense to defendants who otherwise cannot afford this, many detainees stated that they perceived public defenders as colleagues and friends of prosecutors and they may even be colluding with them. This was one reason given by many defendants why they had preferred to argue their own case in court. The Working Group considers it to be an important point to be made that if the principle of equality of arms between prosecution and defense is not fully observed and guaranteed by the judge, justice can not been rendered. Convicted prisoners reported to the Working Group that the evidence submitted on their behalf was not admitted or processed and judges had not called defence witnesses. In addition to this, defence lawyers had difficulties in accessing the trial files. The Working Group recalls that detainees have the right to a fair and public hearing by an independent and impartial judicial authority, as stated in the Universal Declaration of Human Rights, the Covenant of Civil and Political Rights and principles of international customary law The Working Group also notes that excessive powers attributed to the police, to the National Security Services and to the Border Guards facilitate the arrest and detention of many individuals without an arrest warrant issued by a judicial authority. Arrests are often not a consequence of a preceding police investigation but people are detained in order to be investigated. This affects not only the rights to personal freedom, free trial and presumption of innocence, but also the right to the security of person. The Working Group was informed that arrest and detention are used to prevent a suspect from fleeing, destroying evidence or preventing him or her from committing a future offence. The Working Group observed that people are maintained in Police stations for a time superior to the three hours established by the law. However, the norm which establishes that suspects may be held up to 72 hours without charge in pre-trial police detention facilities is generally respected and followed in practice, After 72 hours of detention, a great majority of people are either indicted or released. The practice of inviting people to present themselves to the police stations as witnesses was criticised. Material witnesses do not have the right to prompt judicial determination or legal counsel. Sometimes police officers maintain these persons beyond 72 hours and later change their status from witnesses to suspects. The norm which establishes that nobody can be held in pre-trial detention awaiting trial, for more than 12 months is also usually respected. The problem arrives when the trial begins, given that there are no established time limits for its conclusion. It was alleged that prosecutors regularly request and receive from judges, trial postponements on the ground that they require more time to prepare for trial. Postponements are used as an excuse to prolong investigations. On the other hand prosecutors claimed that the responsibility for the postponement of trials belong to the defence lawyers, because they usually argue that they need more time to prepare their defence. The Working Group notes that the ratio in prisons between people in pre-trial detention and those convicted seems proportional and adequate, with approximately a fourth of detainees on remand. Many detainees and prisoners interviewed by the Working Group denounced having been subjected to ill-treatment and beatings at police stations. Police and National Security investigators use pressure, including ill-treatment, to obtain confessions, as a central part of their investigations. They further denounced that prosecutors and judges refused to admit evidence of ill treatment into court proceedings. Many cases of beatings during arrest and interrogation while in detention were not reported because of fear of retribution. Interviews and meetings with NGOs and legal professionals provide further support for these assessments. Although the law provides for a bail system, the Working Group understands that this is not sufficiently applied in practice. Prisoners are thus required to serve the totality of their sentences, even when the law provides for the possibility of conditional release. This has consequences not solely in the overcrowding of prisons, but also affects the penitentiary regime given that prisoners are deprived of an element of motivation to observe good behaviour while in prison, as well of the possibility to advance the process of reintegration into society. The Working Group also reviewed the situation of 13 persons detained in relation with political demonstrations, particularly the demonstration which took place in March 2008. The Group was able to hold interviews with four of them in different prisons. The Group observes that the Government is granting asylum and refugee status in accordance with the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol. The Government is also providing temporary protection to individuals who may not qualify as refugees. The Working Group visited an open centre in Yerevan in which asylum-seekers and people demanding a refugee status are kept in adequate conditions, being free to go outside during the day hours. They are kept there during the whole duration of their legal procedures. Illegal crossing of the border is considered a penal offense. Arrivals in an irregular situation, such as people entering the Armenian territory without the necessary entry visa, or those who overstay beyond the date of its expiry, are usually subjected to a fine and deported from the country, with prohibition to return to the country during a determined period. The Working Group has noted concerns about the opportunity to claim asylum when refugees are turned away at the border. There are further concerns about the treatment of border crossing as a criminal offence in this context. The Working Group would like to make the following recommendations. Law and practice on remand, in sentencing and by not granting release have extended detention beyond the proportionate level. Law reform and change in court and administrative practice are required. The criteria for granting bail or remanding suspects in detention require tightening up with concomitant changes in practice. Violence during arrest and interrogation require particular attention. Criminal procedure reform may limit the practice of invitation to police interviews without the rights of a suspect, and there is need for training of police staff to improve practice. The rights of refugees and other migrants must be better protected, in particular by allowing procedures of review before individuals are turned away at the border and returned to the other side of the border. These are our preliminary observations at the end of our visit. A final report on the visit will be presented to the Human Rights Council in March 2011.

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