In the Pursuit of Justice? The Harmful Prevalence of Pretrial Detention

“I hadn’t seen my children for about two months. I endured the suffering because I didn’t want them to see me in prison,” says 34-year-old Tatevik Virabyan, who was recently released from house arrest after serving nearly two months in jail. Throughout this time, her two minor children were taken care of by their grandmother. In addition to feeling homesick and being separated from her children, Tatevik also experienced health issues in prison, fainting on multiple occasions.

Criminal proceedings against Virabyan began on September 19, after she participated in protests in front of the government building following the attack on Artsakh by Azerbaijan. According to the accusation, she allegedly engaged in hooliganism with a group of people during the protest and made public appeals for widespread riots. Both her detention and house arrest were applied as a precautionary measure. However, the trial is still ongoing and no verdict has been reached.

According to the Code of Criminal Procedure, detention is applied in three situations: to prevent the accused from fleeing, to keep the accused from committing a crime, and to ensure that the accused fulfill their obligations under the Code or a court order. For example, this can include not communicating with witnesses in the case. In other words, the purpose of detention is to compel the accused to behave appropriately.

Coercion or Punishment

Arsen Babayan, the lawyer representing Virabyan, argues that the decision to imprison her was arbitrary. The court justified the detention by citing the potential for Virabyan to commit another crime, stating that she would likely participate in rallies and repeat the same actions if she were free.

“This severely violates the presumption of innocence and flagrantly violates the individual’s right to freedom,” Babayan asserts. “Moreover, there is no concrete evidence that Tatevik Virabyan has committed a crime, making it impermissible to impose any form of restraint in such circumstances.”

According to Virabyan, this was the government’s method of retribution for her audacity in challenging their authority.

“However, I just exercised my constitutional right to express my opinions and participate in street actions,” she explains. “They intended to send a message that they would not hesitate to target even a woman and a mother of minors, and that they would arrest and convict her.”

Ten others have been charged in the same case as Virabyan. Six of them are represented by Arsen Babayan, who argues that their detention is purely punitive.

“For example, 18-year-old Marat Hakobyan from Artsakh voluntarily turned himself in to the police after learning that they were looking for him,” he says. “He was promptly arrested and placed in custody due to concerns that he might evade the investigation by escaping.”

Lawyer Armine Fanyan also points out that there are cases where detention is employed as a form of punishment: “I have encountered a case where detention has taken on punitive characteristics. It is clear for both the investigator and the court that this individual, given his previous position, long and exemplary service to the country, and strong social connections, is unlikely to engage in improper behavior. However, he remains imprisoned.”

Unjustified Expectations

The new Code of Criminal Procedure took effect on July 1, 2022. It introduces various alternative precautionary measures in addition to detention, some of which were not previously available (such as house arrest and suspension from office).

According to Arsen Babayan, prior to the implementation of the new code, choosing the appropriate precautionary measure was objectively difficult. Detention was severe, while other measures were mild in ensuring the accused adhered to what was required of them while they await trial. 

“Now, with the inclusion of administrative supervision and house arrest, this gap has been filled,” Babayan says. “Courts now have the ability to choose the most suitable form of ‘restraint’ from a range of options, without needlessly limiting fundamental human rights.”

According to Armine Fanyan, the need for anticipating more efficient forms of measures that are unrelated to detention in a penal facility has long been recognized. However, she also acknowledges that, unfortunately, expectations have exceeded reality, as detention remains the most prevalent practice.

She says that house arrest is an effective precautionary measure, but courts are hesitant to apply it. In some cases, the accused may be detained for obstructing the investigation or influencing witnesses, but their right to communicate with others is not restricted.

“Meanwhile, the court can effectively mitigate that risk (while also saving taxpayers’ money) by using house arrest and limiting communication with others,” says Fanyan. “Even if the court refuses to impose detention, the public prosecutor often sets the bail amount so high that the person cannot afford it. As a result, they are returned to detention because the bail has not been paid.”

Detention Statistics

The statistics regarding the use of pretrial detention are unclear, with discrepancies between the annual reports of the Supreme Judicial Council (SJC) and Armenia’s Ombudsperson. In the case of 2021, these discrepancies are significant.

According to the yearly reports of the SJC, there has been a decline in the number of detention orders since 2017. However, considering that new measures have been implemented, the difference between 2022 and previous years is not statistically significant. Therefore, in 2022, there were 1,583 detention orders compared to 1,628 in 2021.

The Ombudsperson stated in their annual report for 2021, that 1030 requests regarding detention were approved, showing positive trends compared to previous years. This data suggests that, despite the new law taking effect, the number of detention orders in 2022 rose dramatically to 1,633.

Although annual figures for 2023 will be compiled in the following year, the SJC has already reported 1,084 detention orders in the first half of the year.

Detention As an Extreme Measure

Edgar Martirosyan of the Human Rights Defender’s Office, notes that the Ombudsperson consistently addresses the issue of detention in their annual reports, summarizing relevant data, providing recommendations, and maintaining the integrity of the legal system without challenging specific judicial decisions.

According to Martirosyan, if the previous recommendations until 2021 were focused on introducing alternative methods of restraint, the recommendations based on this year’s data would be to improve law enforcement practices.

Martirosyan refers to various domestic and international legal documents that establish detention as a measure of last resort or extreme necessity.

Firstly, according to Article 118 of the Criminal Procedure Code, detention should only be used when alternative precautionary measures are insufficient to ensure the proper conduct of the accused, such as preventing escape, committing a crime, or failing to fulfill obligations.

The decision of the Constitutional Court also states:

“…considering the significant impact of detention on an individual’s right to personal liberty, the authority conducting the proceedings must, prior to opting for detention, justifiably exclude other less severe preventive measures within the framework of due process.”

The European Court of Human Rights has addressed the issue of detention in several of its decisions. For example, in the case of Şahin Alpine v. Turkey, the Court stated that pretrial detention should only be used as an exceptional measure of last resort when all other measures have proven inadequate in ensuring proper proceedings. 

Clause 1 of the Parliamentary Assembly of the Council of Europe’s Resolution on the “Abuse of Pretrial Detention in State Parties to the European Convention on Human Rights”, along with Clause 6.1 of the United Nations’ Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), both define pretrial detention as a means of last resort to be used in exceptional cases.

Lawyer Zaruhi Mejlumyan notes that the current Criminal Procedure Code has introduced alternative precautionary measures to ensure compliance from the accused and to use detention only in exceptional circumstances.

“I recall Goran Šimić, a professor at the University of Sarajevo, who used to instruct aspiring judges to voluntarily confine themselves to their homes for three days—without using a phone, refraining from communication, and not receiving guests—and then write an essay summarizing their experiences. He believed that since freedom is one of the most fundamental and valuable human rights, judges needed to understand what it means to be deprived of it,” she explains.

Editor’s Note: We requested the annual statistics on detention as a precautionary measure from the Supreme Judicial Council. They informed us that the data is compiled in the statistics section of the court.am website. However, the reports are compiled in non-Unicode characters, which poses additional challenges in accessing the information. It is worth noting that a 2010 Government Decree states that official governmental websites and documentation must use Unicode.

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