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SOME CONSIDERATIONS ON ENSURING OF THE NATURAL OPERATION OF THE RA HUMAN RIGHTS DEFENDER

Rustam Makhmudyan
Senior expert at the RA Human Rights Defender’s Office, post-graduate student of the Chair of Constitutional Law at the law department of Yerevan State University
February 2007

Alongside with solving a number of economic, political, social, cultural, as well as international legislative problems, the Republic of Armenia, which has promulgated itself a constitutional country that has chosen the direction of democratic development, should ensure the rule of law and the protection of rights and freedoms of the citizens as well. Realization of the above mentioned issues might be possible through the establishment of the principles of social justice, elimination of the orientation to give preference to the idealization of the law enforcement activities and protection of the social interests, and ensuring equal protection of social and individual rights. In this context a rather obligatory and independent role is reserved to the institute of the Human Rights Defender (Ombudsman), which may be a real actor of protection of the individual’s rights from the self-willed actions of the state power, when it is proved to be an independent from the powers body, which is free from political, ideological and lucrative prejudice. The institute of the Human Rights Defender is a novelty in Armenian reality, and naturally it is far from being perfect in its relations with the state and local government bodies, and at the same time the existing omissions need improvement. We think it is due to mention a number of the most essential legislative contradictions that refer to the principles of the Law of RA on the Human Rights Defender. One of the most important things here is that the bodies (the investigation body, the investigator, the prosecutor, the court), which realize the criminal process, should in their part guarantee the problem of the individual’s rights and freedoms. In this sphere there are visible differences both in the legislation as well as in the practical work, starting from the stage of initiating the criminal case until the hearing in the Court of Cassation of the Republic of Armenia. In particular a great number of complaints provided to the Ombudsman refer to fact of denial to cancel the criminal case on the requirement of the appellants by the preinvestigation bodies, as well as to the decisions of the prosecutors and the courts denying canceling those cases. In this respect it is due to present the complications, which occur in the practical work in the context of legislative differences. Thus, the first part of Article 180 of the Criminal Procedural Code provides that the communications referring to crimes should be considered and solved immediately, at the same time the grounds for initiating the criminal case and their legality should be enough conduct examination during the 10 days from their receipt. The study of the appeals on the contrary reveals that the criminal investigation bodies very often violate the mentioned norm. Often this is explained by the fact of overload of the work, which may not serve as a univocal condition to reprieve or alleviate the responsibility. In addition a rather vast number of complaints refer to weak improper supervision by the prosecutors. Some definite contradictions occur when the citizens require information or documents referring to the cases from the bodies realizing the criminal procedure. In particular, paragraphs 2, 3 and 6 of Part 1 of Article 12 of the Law of RA on the Human Rights Defender state that after the decision on considering the appeal is taken, the Ombudsmen has the right to study the issues raised in the complaint, and is entitled to apply to any state or local self government body or their officials, except the courts and the judges and require and receive the necessary materials and documents to get acquainted with all the issues, explanations and details, which are obtained during the process. In contrast to this according to part 1 of Article 201 of the Republic of Armenia Criminal Procedural Code the details of the preliminary investigation may be published only with consent of the body, which conducts the proceeding. “The order of carrying out the proceeding of the criminal case in the territory of the Republic of Armenia is regulated by the Constitution of the Republic of Armenia, this code and other relevant laws. The order of carrying out the proceeding of the criminal case established by the Criminal Procedural Code is compulsory for all courts, investigation, preliminary investigation and prosecution bodies, as well as for the participants of the legal procedure.” According to the RA Law on Legal Acts, all the laws of the Republic of Armenia should comply with the Codes in the sphere of legal relationship (Part 1 of Article 9). Part 2 of article 6 of the RA Law on Prosecutor’s Office in its turn states that the prosecutor, the investigator is not obliged to provide explanations on cases, or materials under their proceeding, or provide them for consideration but for the cases and order provided by the law. Further, according to paragraph 5 of part 1 of the Article 12 of the Law of RA on the Human Rights Defender, the Ombudsman is authorized to get acquainted with the court decisions, verdicts and judgments on criminal, civil, administrative, economic cases and other offences that have come into legal force, as well as with the materials, which were denied to initiate a criminal case. As it is obvious the law does not mention the decisions on dismissal of criminal proceeding or abatement of the criminal action, as well as of the decisions on termination. The practice, which has been established in the practice of the Human Rights Defender’s staff, testifies that when requiring the dismissed or terminated cases they face problems such as simply not providing the case, or refusal to provide the case with reference to the criminal procedural legislation, or such permission is granted, but the study of such case is conducted in the office of the relevant state body. Consequently it is necessary to realize corresponding changes both in the Republic of Armenia Criminal Procedural Code as well as in the Law of RA on the Human Rights Defender. We think the Ombudsman should be entitled with certain authorities in the sphere of legal procedural activities. This should be aimed to supplement the systematic structures of the protection of the individual’s rights in the criminal procedural sphere and not changing the bodies, which realize the criminal proceeding (investigative body, investigator, prosecutor, court).

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