Publication

Lyudvig Davtyan
Lawyer

April 2007

SOME PROVISIONS OF CONSTITUTIONAL REGULATIONS OF FREEDOM AND IMMUNITIES OF AN INDIVIDUAL

Individual rights, and also the right of freedom and immunity of an individual, have the primary importance and meaning in the system of the human rights. For the first time this rights and the secured guarantees were anticipated in “Habeas corpus act” which the British Parliament accepted in 1679, and in future they were included in the “primary” constitutions. In the modern world the legislative provision and protection of this right is explained by the fact of conceiving of the significance of the right of freedom and personal immunities of an individual on the international level.
Actually the sphere of jurisdiction could not stay aside from discussing the personal rights, where it touched upon the diverse questions of the limitation of the right of freedom and personal immunities of an individual in the connection with balancing of the struggle against crime, with the public and private interests. From this point of view, the issues of freedom and immunities of an individual in the criminal procedure has long ago been the subject for international discussions and were included in the provisions of some international legal documents and guaranteed with international legal protection. In particular it is provided in Article 5 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950 in Rome, and the legislative activities, which the European Court realizes based upon this provisions.
According to the language of Article 5 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, the deprivation of liberty means: deprivation of liberty by a competent court (individual) in compliance with, and in the occurrence of the grounds prescribed by law, limitation of the individual’s physical, personal liberty. At the same time “immunity” is meaningless when considered independently from “freedom”, the main principle which governs any state act on limitation of freedom is the principle to be free from prejudice.
The right for freedom and immunities of an individual in the RA Legislation is provided by the Article 16 of the RA Constitution in the following language: “Everyone shall have a right to liberty and security. A person can be deprived of or restricted in his/her liberty by the procedure defined by law…”
It is not a secret that the possibility of violation of the discussed rights is largely possible when realizing investigation and search operations, as well as proceeding activities aimed at prevention, hampering, warning and revealing of the acts that form danger for the public at large. Thus the grounds and conditions for prevention of possibility of the mentioned acts should be determined more precisely. It should be mentioned in this regard that the constitutional regulation of the right to liberty and immunities of an individual has certain defects, and we shall refer to some of these shortcomings.
Thus paragraph 4 of the first part of Article 16 of the RA Constitution determines the grounds for deprivation from liberty like: “when reasonable suspicion exists of commission of a crime or when it is necessary to prevent the commission of a crime by a person or to prevent his/her escape after the crime has been committed.” First of all it should be mentioned that the mentioned legislative thesis contain the so-called three independent sub-bases of depriving the individual’s freedom. They are a) reasonable suspicion exists of commission of a crime, b) when it is necessary to prevent the commission of a crime by a person, c) when it is necessary to prevent his/her escape after the crime has been committed. In results of the analysis of these bases it becomes evident, that the serious shortcomings have taken place in this paragraph of the RA Constitution and which lead to the following conclusion.
First, it is not clear in sub-base (a) separated above, who is the subject deprived from freedom on that base, when the same paragraph as well as other paragraphs of the Article 16 more or less define the person who may be the subject for deprivation and upon whom the bases for deprivation may be applied.
Second, in the next sub-bases (b) and (c) of the discussed paragraph of the RA Constitution, an important precondition from depriving of freedom like the existence of reasonable suspicion is missing. Whereas this is vague in the content of the discussed paragraph, and it does not suggest that the term “reasonable suspicion”, which is used here refers to the second and third conditions that are provided in the same provision.
In this connection we consider it necessary to compare the similar the constitutional and conventional provisions. Thus in the European Convention the corresponding grounds for deprivation of liberty reads: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law… the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so” (European Convention Article 5 (1c)).
It is obvious, that the terms “reasonable suspicion” and “reasonably considered” are used in all bases for depriving of liberty that are provided in this paragraph, and this is not incidental, as only in this case the limitation of the right of the person’s freedom is considered to be well-stated and legal. Taking into the consideration the case-law referring to the “reasonable suspicion” of having committed the crime the European Court has determined; “The reasonability of suspicion, in conformity to which detention and arrest should be realized, is the essential provision for the guarantee against the arbitrary detention and arrest determined in the paragraph 1 (c) of the Article 5 of the Convention… The “reasonable suspicion” implies the existence of the facts or information that persuades the objective observer, that the person has violated the law.” Nevertheless, according to the European Court, fact of “reasonable suspicion” should be decided taking into the consideration all circumstances of the action. This, in essence, means that the existence of enough objective evidences referring to action or inaction of the individual was aimed at committing the crime.
Third, it is not clearly determined in Paragraph 4 of part 1 of the Article 16 of the RA Constitution, does not clearly determined the goal of deprivation of liberty and what behavior should the individual perform after his/she is deprived of liberty. In fact, deprivation of liberty is not the end in itself, in addition to its goal to prevent the crime it also directly pursue the goals to reveal the crime by passing the detainee to the competent legal authority. For this reason, the considered provision of the European Convention clearly determines the goal of deprivation of liberty on corresponding grounds, which is bringing the person to the competent legal authority. Wherein the expression “competent legal authority” paragraph 1 (c) of the Article 5 of the Convention should be interpreted (considered) in the meaning “a judge or other officer authorized by law to exercise judicial power,” which is provided in paragraph 3 of the Article 5 of the Convention. The term “a judge or other officer authorized by law to exercise judicial power” is the explanation of the term “competent legal authority” indicated in paragraph 1 (c) of the Article 5 of the Convention.
In addition to the fact that the Constitution, enumerates the grounds for deprivation of liberty as guarantees for insuring the right of freedom and immunities of a person, the same article 16 provides other individual grounds for guaranteeing the discussed right. Of course, the providing of such guaranties in the Constitution proceeds from the protection of the human rights and freedoms, unfortunately the Basic Law of our country has certain vagueness referring to this issue.
With regard to the Constitutional guarantees of the individual’s right to liberty and security it is especially necessary to address to Paragraph 4 of the Article 16 of the Constitution, which provides; “Every person shall have the right to appeal to a higher instance court against the lawfulness and reasons for depriving him/her of freedom or subjecting to search.”
On the assumption of the language of this provision it may be considered that in accordance to all Constitutional grounds depriving the person of freedom or subjecting to search is carried out under the judiciary supervision (by the decision of the court), and the discussed provision is simply provided to ensure the person’s right to appeal the court decision in upper instances. Whereas the Constitution of the Republic of Armenia anticipates judiciary supervision only for deprivation of liberty as a ground for preventive measure. The right to appeal to a higher instance court against the lawfulness and reasons for depriving of freedom or subjecting to search may be considered in case of adjudgment of a court that has corresponding jurisdiction (Paragraph 1 of part 1 of the Article 16 of the RA Constitution).
In all other cases, when the primary judicial supervision by the Constitution is not anticipated in regard to the limitation of the right for the freedom and immunity of the individual, retaining to the right to apply to upper instances is for the protection of these rights becomes redundant.
On the other hand this constitutional provision actually deprives the person from the right for the judicial protection his right of freedom and immunity. Such Constitutional regulation reduces the importance of the guaranty for the judicial protection of the right for freedom and personal immunity. It turns out, that, a person, who has been illegally arrested or is in search, may appeal the legality and validity of the arrest and searching only to the Appellate (Cassation) Court, and not to the court of first instance. Whereas, the article 18 of the Constitution provides, “Everyone shall be entitled to effective legal remedies to protect his/her rights and freedoms before judicial as well as other public bodies.”
Thus, on the assumption of the importance of the individual’s right for liberty and security, the domestic legislation should provide the corresponding grounds for limitation of these rights in an a more distinct language, and determine effective norms and guarantees for their protection. At the same time Basic Law should be the source for determining these guarantees, and provide sufficient essential and basic provisions to ensure the freedom and immunity of the individual. In this respect we think the current Constitution may not be considered successful. We think that in result of future judicial reforms the RA legislation should provide mechanisms for application of the judicial restraint, as well as for limitation liberty and security, which will ensure to a greater extent realization and efficient protection of this fundamental right of the individual.

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