Completed questionnaire for the preparation of the CCPE Opinion No. 12(2017)
“The rights of victims, witnesses and vulnerable persons”
1.1. The definitions of a victim and a witness are set forth in the Criminal Procedure Code (CPC) of the Republic of Armenia (RA). Under Article 58 § 1 of the CPC a person is recognized as a victim whom moral, physical or pecuniary damage has been directly caused through an act prohibited by the Criminal Code (CC). Also a person is recognized as a victim whom moral, physical or pecuniary damages might be caused had the act been committed completely.
Article 86 § 1 of the CPC provides that witness is a person who has been called to testify by a party or the authority dealing with the criminal case and who may be aware of any circumstance related to the case which needs to be clarified.
1.2. RA legislation does not stipulate any specific regime for the persons suffered from certain types of crime.
1.3. Neither RA legislation generally nor the CPC specifically envisage a definition of vulnerable persons.
2. The rights of victims, witnesses and vulnerable persons
2.1. RA legislation sets forth specific rights for a victim and a witness, in addition to human rights in general.
2.2. Those rights are stipulated in Articles 59 and 86 of the CPC respectively.
2.3. Some rights for the victim may be stated below, as such:
- Right to lodge appeals against the actions and decisions of the body of inquiry, the investigator, the prosecutor and the court, including the verdicts and other final judicial decisions;
- Right to receive compensation, in a procedure prescribed by law, for the damage caused as a result of the acts prohibited by the CC;
- Right to compensation for the expenses incurred during the criminal proceedings;
- Right to protection;
- Right to be present at the court hearing;
- Right to testify;
-Right to give explanations;
-Right to provide materials to be attached to the criminal case and later to be examined;
Some rights for the witnesses are as follows:
- Right to be exempted from the duty to testify about himself, his spouse, or his close relatives, the duty to provide materials and information, if it can be reasonably presumed that it may subsequently be used against him, his spouse, or his close relatives;
- Right to familiarize him(her)self with the records of the investigative or procedural measures exercised with his participation.
- Right to familiarize with the relevant part of the record of the court hearing, and make remarks in respect of fullness and correctness of his/her testimony which should be included in the record;
- Right to come the authority dealing with the case with his/her attorney;
- Right to write down his/her testimony personally at the pre-trial stage;
- Right to compensation for the expenses incurred during the criminal proceedings;
- Right to be aware of which criminal case he/she is summoned.
2.4. The procedure for clarifying the above stated persons their rights is set forth under Article 101 of CPC. Namely, Article 101 § 2 states that the authority dealing with the criminal case has the duty to clarify every person, participating in the proceeding, his / her rights and obligations, and provide with the opportunity to exercise them in the procedure prescribed by the CPC.
2.5. According to the law, violation of the rights of the above-stated persons by the authority dealing with the criminal case entails disciplinary liability. The procedure and the grounds for imposing disciplinary liability are envisaged respectively by the Law on Prosecution Office Articles 46 and 47, the Law on Investigative Committee Articles 29 and 30, and the Judicial Code Article 153. Moreover, the violation of their rights entails inadmissibility of the evidence.
2.6. The CPC sets forth certain features for some investigative measures in participation with the above-stated persons. Namely, Article 207 of CPC prescribes specific procedure for interrogation of a minor witness or victim, according to which, the latters are questioned in presence of a pedagogue, also, the legal representative is entitled with the right to be present during the interrogation and ask questions. It is explained to the witness or the victim under the age of 16 his/her obligation to tell truthfully about everything related to the case, yet they are not warned about the liability for the refusal to testify, or avoidance testifying or for obviously false testimonies. Article 208 of the CPC sets forth the procedure for interrogation of a deaf or other severely ill person as witness, according to which the interrogation of a deaf witness is conducted with participation of a translator understanding the language of his signs. It should be mentioned in the record that the interrogation is conducted in the presence of translator. In case the witness suffers from a mental or other serious illness the interrogation is conducted with the permission of a physician and in his presence.
2.7. Under Article 76, § 1 the legal representative of the victim, plaintiff, suspect, accused is his/her parent, adoptive parent, guardian and trustee, who represents the lawful interests of minor or incapable participant in the criminal proceeding. In case not having a legal representative the authority dealing with the criminal case appoints the body of guardianship and trusteeship as legal representative of the victim, suspect or accused.
Article 207 § 2 stipulates that witnesses and victims under the age of 16 are questioned in the presence of a pedagogue, and Article 208 § 2 states that in case the witness suffers from a mental or other serious illness interrogation of the latter should be conducted in the presence of a physician (the pedagogue mostly supports the authority dealing with the case rather than the minor witness or the minor victim).
2.8. The physician and the legal representative of a minor witness or victim participate in the interrogation, yet they cannot prohibit questioning. However, in case the witness suffers from mental or other serious illnesses he is interrogated only with the permission of a physician.
2.9. Article 208 of the CPC states that the duty to tell truthfully everything related to the case is explained to the witness or victim under the age of 16, yet they are not warned about the liability for the refusal to testify, or avoidance testifying, or obviously false testimonies. Hence it can be concluded that in case of refusal to testify no legal impact may incur. And based on Article 208, § 2 it can be concluded that a physician, by taking into consideration the level of seriousness of mental or other illness, may prohibit conducting interrogation.
2.10. Despite the absence of the definition and the scope of vulnerable persons in the legislation of RA, Article 98 of the CPC states that
1) Any person participating in criminal proceedings, who may be able to provide information important for the disclosure of the crime and identification of the perpetrator, as a result of which his life, health, property or rights and lawful interests, or those of his family members, close relatives or other close persons may be endangered, is entitled to protection.
2) Protection of the person participating in criminal proceedings, his family members, close relatives or other close persons shall be provided by the authority dealing with the case.
3) The authority dealing with the case, having discovered that a person needs protection, on the basis of that person’s written application or of its own motion shall adopt a decision to take a protective measure which is subject to immediate implementation.
2.11. Under Article 98.13, §§ 2 and 3, upon necessity the interrogation of a protected person may be conducted in a way to exclude his identification. For this reason a mask, grim, a device transforming his voice and other means not contradicting the law. The interrogation of the protected person can be conducted through audio/video tapes or other technical means (veil, protective screen, layer) in participation of limited participants and by warning about keeping the secrecy. In case of necessity the identification can be conducted through the photographs of other persons similar in appearance and clothing (Article 221, § 7).
2.12. To solve this problem the CPC stipulates no specific means. Yet, the systematic analysis of RA legislation allows us to say that some articles are aimed at ensuring prevention of repeated victimisation. Specifically, as a general means, Article 200 of CPC states that 1) prosecutor, investigator, body of inquiry are obliged to find out the circumstances fostering the commission of crime and if necessary, file a motion to the relevant legal entity or official to take steps to abolish such circumstances.
2) The motions should be examined, and the author of the petition (body or official) should be informed in writing about the results.
Then, Article 134 of the CPC sets forth the types of preventive measures imposed on the suspect or accused in order to prevent their inappropriate behavior, and Article 135 provides the grounds for preventive measures, i.e. if the materials of the criminal case give sufficient grounds to believe that, inter alia, the suspect or accused may have illegal pressure on the participants in the criminal proceedings, preventive measures can be imposed.
In addition, the regulations under CC are also aimed at such protection. Namely, Article 63 of CC states repeated committal of crime as an aggravating circumstance for criminal liability or punishment. And Article 67.1 states that recidivism is considered while imposing punishment.
2.13. If the case falls under the jurisdiction of RA, the discrimination based on nationality or other facts is prohibited and those rights are guaranteed both for RA citizens and foreigners. Besides, Article 15 § 2 of the CPC provides that based on the decision of the authority dealing with the case those participants in the criminal proceedings who do not know the language of the criminal proceedings, are granted with the opportunity to exercise their rights, prescribed by the CPC, with the help of translator. The expenses for translator are covered by the state budget. Moreover, according to Aricle 15, § 3, the authorized copies of the documents, which should be given to the participants, are provided in the language they know.
3. Role of prosecutors in protecting the rights of victims, witnesses and vulnerable persons
3.1. Under Article 58, § 1 (12) of the CPC the victim is entitled the right to lodge appeals against the actions and decision of the body of inquiry, the investigator, the prosecutor and the court. Article 263, § 1of the CPC states that beside the suspect, accused and other persons, the victim also is entitled to lodge appeals against the decision on termination of criminal prosecution or that of criminal proceedings within 7 days after receiving its copy. Under Article 53 of the CPC the prosecutor is entitled to institute and carry out criminal prosecution, cancel the decision of the of the body of inquiry and the investigator on termination of the criminal proceedings, cancel the decision on reject the institution of criminal proceedings and institute criminal proceedings, as well as cancel other decision of the latters in cases prescribed by the CPC, and institute criminal proceedings proprio motu.
3.2. The stated rights of the prosecutors are enshrined both under the CPC and the Law on Prosecution Office. In addition, the order of the Prosecutor General of RA sets the Code of Conduct for prosecutors.
3.3. Article 4 of the Law on Prosecution Office states that the Prosecution Office exercise supervision over the legality of the inquiry and preliminary investigation in accordance with Article 103 of RA Constitution. As stated in Article 53 of the CPC, while exercising procedural ruling over the inquiry and preliminary investigation the prosecutor is exclusively entitled 1) to check the observance of the law requirements for the receipt, registration and solution of the information about committed or preparing crime and other cases; 4) if necessary to order the head of the investigation body in writing to conduct the investigation by the group of investigators, as well as order the heads of investigative bodies of various bodies conducting preliminary investigation to involve in the groups of their investigators; 6) to make orders to the body of inquiry, investigator in writing to take investigative or procedural measures, to adopt decisions; 9) deal with the appeals against the actions and decisions of the body of inquiry and investigator, except those appeals that fall under the jurisdiction of the court. Moreover, according to article 55, § 5, the investigator is obliged to implement the lawful orders of the prosecutor.
In addition, Article 53, § 3 (8) entitles the prosecutor, exercising procedural ruling over the legality of inquiry and preliminary investigation, the right to take appropriate measures to protect the victim, witness and other participants in the proceedings. Then a whole chapter of CPC (Chapter 12) provides the mechanism for protection of the participants in criminal proceedings.
3.4. According to Article 6, § 33, applicant is any person who applies to the court, body of inquiry for having protected his rights against violations through criminal procedure. It can be concluded based on this Article that witnesses and victims may also be considered as applicants. Besides, according to Article 6, § 22, in addition to the body of inquiry and investigator, prosecutor is also considered as a body of criminal prosecution to whom the applicant may apply.
Article 263, § 1of the CPC states that beside the suspect, accused and other persons, the victim also is entitled to lodge appeals against the decision on termination of criminal prosecution or that of criminal proceeding within 7 days after receiving its copy.
3.5. Under Article 53, § 3 (8) while exercising procedural ruling over the legality of inquiry and preliminary investigation the prosecutor is entitled to take measures to protect the victim, witness and other participants of the criminal proceedings.
3.6. Under Article 76, § 1 the legal representative of the victim, plaintiff, suspect, accused is his/her parent, adoptive parent, guardian and trustee, who represent the lawful interests of minor or incapable participant in the criminal proceeding. In case not having a legal representative the authority dealing with the criminal case appoints the body of guardianship and trusteeship as legal representative of the victim, suspect or accused. In order to find out the circumstances fostering the commission of a crime the prosecutor files a motion, if necessary, to the relevant legal entity or official to take steps abolishing such circumstances. These motions are subject to immediate examination, and about the results of which the body of official should be informed.
Besides, the prosecutor is entitled the right to have meetings and discussions on certain matters with the representatives of the Government of RA.
3.7. Article 19 of The Law on Justice Academy of RA sets forth that the process of education is conducted based on the educational projects which are drafted according to the standards of education established by the Council of the Academy and confirmed as prescribed by law.
2. The educational projects of the Justice Academy are as follows:
2) trainings for judges, investigators, prosecutors etc. as set forth under Article 14, § 1(3). According to Article 18 training is a mandatory educational process aimed at developing professional knowledge and practical skills of the stated subjects through examination of certain spheres.
And a separate course on the peculiarities of the examination of the cases involving vulnerable persons is included in the schedule of the trainings at the Justice Academy of RA.