Restrictions on Visits from Family Members to Detainees Often Aimed at Punishment: Tatoyan

During both 2020 and 2021, the Human Rights Defender received complaints regarding the unjustified prohibition of visits and telephone conversations between detainees and their close relatives, including family members and legal representatives, by the criminal prosecution bodies. These complaints, along with the study of decisions made by the prosecuting bodies, indicate that the issues in this regard are systemic and the unacceptable practice continues.

The decisions made by the criminal prosecution body and the court prohibiting visits for detainees are not always sufficiently justified. Most of the time, the prosecuting authority merely references legislative norms without correlating them with the factual circumstances of the case or the evidentiary data available in the case.

As for the review of the decisions, in some cases, the process is either unnecessarily delayed or the question of the continued application of restrictions is not discussed at all. Under such conditions, the restrictions are often applied without proper justification, aimed at depriving the detainee psychologically and obtaining information necessary for the investigation.

In effect, in adding to the deprivation of liberty, individuals suffer additional hardships by limiting their contact with family. For instance, in one complaint, a detained woman was deprived of the opportunity to see or talk to her two minor children, and no proper justifications were provided.

In one case, a prohibition on visits and phone calls (including to her children) was imposed for about six months. The absence of a formal communication removal was also noted.

Investigators, prosecutors, and judges often justify the necessity of the prohibition citing legitimate interests, displaying a formal approach and failing to clarify what factual data led to the conclusion that the individual, if provided with the right to visits and phone conversations, would hinder the objective investigation of the case. It remains particularly unclear how young children are related to the act attributed to the individual and how their visits or phone calls could obstruct the investigation.

It is worth noting that visits and phone calls are typically banned simultaneously. Usually, the ban on visits is lifted first, while the prohibition on phone conversations continues for a period of time. The prosecuting body justifies this approach by citing the absence of mechanisms for monitoring phone conversations.

Specifically, according to investigative bodies, there is no means to determine whom the detainee is actually speaking with during phone calls. It is undeniable that both deficient regulatory frameworks and the absence of mechanisms to regulate the legality of an individual's actions cannot lead to disproportionate limitations on the rights of persons deprived of liberty. Therefore, situational solutions should not be offered regarding limitations on human rights.

A systematic solution requires alternative approaches. It is also important to emphasize that visits and phone calls are two distinct means of maintaining contact with family and the outside world, so the necessity of limiting each should be discussed separately; one limitation should not lead to the limitation of the other.

A legislative and practical overview of the right to maintain contact with the outside world and the right to visit close relatives has revealed that issues arising in legal practice are, among other things, a result of deficient and unclear legislative regulations. While Armenian legislation contains certain provisions in this regard, they are insufficient to ensure real guarantees of the right.

In any case:
1. The mere fact of an ongoing criminal investigation cannot be a basis for limiting the right to visits with family or relatives. Any limitation on such communication should have specific and individualized justifications;
2. The circle of individuals entitled to visit should be separated from family members or close relatives of the detained individual, with stricter requirements set for limiting their right to visit;
3. The investigator should not hold the authority to limit the right of a detainee to receive visits from family or close relatives;
4. Decisions that restrict this right should be justified;
5. These decisions should be promptly communicated to the detainee and/or their attorney to fully utilize the legal avenues for appeal;
6. The decision limiting the right to visit family or close relatives should be regularly reviewed, regardless of the desires or attitude of the person deprived of liberty.

Based on the above, the Office of the Human Rights Defender has developed a draft of legislative amendments. Back in 2018, in cooperation with the Ministry of Justice, it was presented to the ministry. Since then, it has been repeatedly discussed in the National Assembly’s Legal and Public Affairs Committee, as well as in the Permanent Commission on Human Rights.

Before the enforcement of legislative amendments in the new Criminal Procedure Code of Armenia, it is essential to develop practices whereby every decision made by the prosecuting body clearly outlines the individuals with whom detainees are prohibited from having visits and phone conversations. Simultaneously, it is necessary to regularly review the decision and revoke it if the necessity for the prohibition ceases to exist.