Former Minister Davit Harutyunyan's Letter to Police Chief Vahe Ghazaryan

In recent times, the mass administrative arrests carried out by the police have raised deep concern. An analysis of these incidents reveals that they are conducted illegally, of which you may not be aware. Since ignorance of the law does not exempt someone from responsibility, I am compelled to inform you about the legislative regulations governing the relevant legal relations through an open letter.

I am confident that you will find the best way to make the content of this letter accessible to the police officers operating under your authority.

The cases and procedures of administrative arrests are defined by the Code of Administrative Offenses of the Republic of Armenia (hereinafter referred to as CAO). The purposes of administrative arrests are outlined in Article 259 of the CAO, according to which: “In cases directly stipulated by the legislative acts of the Soviet Union and the Republic of Armenia, in order to prevent administrative offenses, if other means of influence have been exhausted, for the purpose of identifying the person, drafting a protocol on the administrative offense if it is not possible to draft it at the scene, and to ensure the timely and correct examination of cases and the execution of decisions in administrative offense cases, administrative arrest, personal search, inspection of items, and the seizure of items and documents are permitted.”

According to point 1 of Article 261 of the same code, “administrative arrest of a person who has committed an administrative offense can only be carried out by authorized bodies (officials) under the laws of the Soviet Union and the Republic of Armenia,” which means that: 1) The police can enact administrative arrests for petty hooliganism, for violating the established order of organizing and holding gatherings, for malicious disobedience to a lawful order or demand of a police officer, for violations established by laws and legal acts regulating currency relations, for consuming alcoholic beverages in public places or being publicly inebriated in a state that offends human dignity and public morality, in cases where there are sufficient grounds to presume that the person is engaged in prostitution, for violations of road traffic rules, for violations of rules of hunting, fishing, and conservation of fish stocks, as well as for other cases directly stipulated by legislative acts of the Soviet Union and the Republic of Armenia.”

A protocol is drawn up regarding the administrative arrest, specifying the time and place of its creation, the position, name, patronymic, and surname of the person drafting the protocol, information about the detained person, the time and place of the arrest, and the grounds (Article 260, part 1 of the CAO). The administrative arrest of a person who has committed an administrative offense may not exceed three hours; in exceptional cases, due to special necessity, the laws of the Soviet Union and the Republic of Armenia may specify other periods for administrative arrests (Article 262, part 1 of the CAO).

From the analysis of the above legislative regulations, it becomes clear that administrative arrest is an independent means of depriving a person of freedom, albeit briefly. This means that administrative arrest must meet any of the exhaustive grounds for deprivation of personal freedom provided by Article 27 of the Constitution. The combination of these grounds with the goals of administrative arrest allows for a definitive conclusion that the only applicable one can be the third point of part 1 of Article 27 of the Constitution—deprivation of personal freedom to ensure the performance of a specific obligation established by law. This, in turn, means that a legitimate purpose can only exist if: a. a specific obligation is established for the person by law (principle of specificity), b. the person does not voluntarily fulfill that obligation, c. the administrative arrest is an appropriate means to ensure the fulfillment of that obligation, meaning that the administrative arrest ensures the fulfillment of that obligation.

At the same time, the administrative arrest must comply with the requirements of the principle of proportionality enshrined in Article 78 of the Constitution, which implies that it must meet two additional conditions: d. the administrative arrest is a necessary means aimed at achieving a legitimate purpose, meaning there is no milder, equally effective method of achieving the compliance with the obligation in question, and e. the harm caused by the administrative arrest to the fundamental right to liberty must correspond to the significance of the pursued objective.

In all other cases, any interpretation and application of the CAO regulations contradicts the requirements of at least Articles 27 and 78 of the Constitution, whose respect and protection are direct obligations of public authority as stipulated in Article 3 of the Constitution.

It should be noted that certain provisions of the CAO have already been recognized as unconstitutional and void by the Constitutional Court’s decision No. SDO-1059 dated November 23, 2012.

Furthermore, the conditions for the legitimacy of administrative arrest stemming from the Constitution of the Republic of Armenia fully correspond to the judicial interpretations of Article 5.1(b) of the European Convention on Human Rights. Specifically, in Lawless v. Ireland and Ciulla v. Italy cases, reference was made to the principle of specificity, noting that when authorities base deprivation of liberty on violations of general norms, they violate the principle of specificity. The McVeigh and others v. The United Kingdom case addressed the principle of proportionality, stating that when interpreting the words “for the purpose of carrying out a legally established obligation,” “the nature of the obligation must be considered. It is necessary to consider whether its fulfillment is an immediate necessity, and whether the circumstances are such that in practice there are no other reasonable means to ensure its fulfillment.”

Thus, any administrative arrest not stemming from the Constitution and the European Convention on Human Rights becomes an unlawful restriction of personal liberty and can become the subject of judicial appeal based on Articles 3 and 69 of the Administrative Procedure Code. It may also serve as a basis to hold accountable those who conduct illegal arrests and their organizers, as well as those officials who fail to prevent such actions under Articles 309 and 308 of the Criminal Code.

I also find it necessary to draw your attention to the right to compensation for damages caused by the unlawful actions or inaction of state bodies and officials, as enshrined in part 1 of Article 62 of the Constitution as a fundamental right. I believe that the police are creating grounds for mass claims for property and non-property damages to be brought by those subjected to illegal administrative arrests against the state.

Considering the above, urgent changes to the police’s operational practices are necessary to align them with the requirements of the Constitution of the Republic of Armenia.