ARM-2010-1-001
a) Armenia / b) Constitutional
Court / c) / d) 12-09-2009 / e) DCC-827 / f)
On the conformity with the Constitution of Article 285.2.2 of the Code of
Criminal Procedure / g) Tegekagir (Official Gazette) / h)
.
Keywords
of the Systematic Thesaurus:
|
Sources
- Categories - Written rules - International instruments - European
Convention on Human Rights of 1950. |
|
|
Fundamental
Rights - Civil and political rights - Individual liberty - Deprivation of
liberty - Arrest. |
|
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Fundamental
Rights - Civil and political rights - Individual liberty - Deprivation of
liberty - Detention pending trial. |
|
|
Fundamental
Rights - Civil and political rights - Procedural safeguards, rights of the
defence and fair trial. |
Keywords
of the alphabetical index:
Arrest
and detention, safeguard.
Headnotes:
The
realisation of the right to be brought before a tribunal and for one's case to
be heard is directly and inextricably linked with actually keeping somebody in
custody i.e. isolating them physically from society. The obligation of the
state to guarantee the implementation of this right arises at the point where
somebody is deprived of their liberty and physically isolated from society. The
safeguards built into Article 16 of the Constitution, as well as Article
5 ECHR, only begin to operate when the state actually deprives someone of
their liberty. A person subject to search procedures is not deprived of his or
her liberty, and does not therefore benefit from the safeguards mentioned
above, or the right to be heard in court when the possibility of detention as a
restriction comes up in a case in his or her absence.
Summary:
The
Constitutional Court was asked by an individual to assess the constitutionality
of Article 285 of the Criminal Procedure Code. The applicant suggested that
because this Article prescribes the possibility of detention for someone
subject to a search procedure, it is in breach of Article 16 of the
Constitution, which states that only arrested persons may be detained.
The
Constitutional Court reviewed the constitutional legal contents of Article 16
of the Constitution and, having considered the subject and aim of the legal
regulation of Article 16.3, found that it does not define the order of
implementation of the institutes of arrest and detention. Neither do they make
clear the succession of the requisite decisions on arrest and detention made by
the competent bodies. Arrest is not considered as a binding prerequisite for
detention; and so the fact that an arrest has not taken place does not rule out
the possibility of detention. The Constitutional Court also emphasised that
when those drafting the Constitution set out in Article 16.1 the cases where
someone would be deprived of their liberty, the legislator was left with the
discretion to choose the forms of deprivation of liberty and the goals and
grounds of the measure. No stipulation was made as to the kind of procedural
measures that can be undertaken in each concrete case or in order to achieve a
concrete goal. The Code of Criminal Procedure, in line with Article 16.1, has
determined arrest and detention as procedural measures for achieving separate
legitimate goals, and at the same time defines the function, aim, and grounds
of each. The Constitutional Court stated that the possibility of the binding
succession of the implementation of the institutions of arrest and detention is
also excluded in the context of the essence, goals, and grounds of
implementation of these institutions.
The
Constitutional Court also highlighted the issue of safeguarding the right to be
heard before a court prescribed by Article
5.3 ECHR when a decision is taken to detain someone who is being searched.
Because the realisation of the right to be brought before a tribunal and to be
heard is directly and inextricably linked with actually keeping someone in
custody (isolating them physically from society), the Constitutional Court
found that the state's duty to guarantee the implementation of this right
arises from the point where the person is actually deprived of his or her
liberty and cordoned off from society. In other words, all guarantees
prescribed by Article 16 of the Constitution, as well as Article
5 ECHR, only start functioning at the point where someone is actually
deprived of liberty by the state. A person subject to search procedures is not
actually deprived of his or her liberty and so does not enjoy these safeguards,
or
the right
to be heard by a court when the issmexue of detention as a restrictive measure
arises during his or her absence. Therefore, if a decision is taken to choose
detention as a measure of restriction during someone's absence, this does not
result in a violation of rights guaranteed by Article 16 of the Constitution
and Article
5 ECHR.
Armenian.