OM Budgets Unacceptable Approaches of the RA Ministry of Justice

The Human Rights Defender of Armenia considers the approaches of the RA Ministry of Justice fundamentally unacceptable regarding the rights of elected council members in communities who should participate in the first meetings of the councils but are incarcerated.

This statement was made by Human Rights Defender Arman Tatoyan.

“In particular, based on the study of complaints addressed to the Human Rights Defender, a position analysis was submitted to the Ministry of Justice, stating that the government of the Republic of Armenia, specifically the Ministry of Justice, regardless of the attitude of the criminal prosecution body or the court that satisfied the request for arrest, is obliged to ensure the constitutional electoral rights of those council members who are deprived of their freedom (in preventive detention), namely, in the penitentiaries of the Ministry of Justice,” he stated.

However, in the response letter from the Minister of Justice, there was a strictly formal approach that violated constitutional rights, disregarding the particularities of the Constitution and the fundamental demand for upholding the rule of law.

On the one hand, the Ministry of Justice acknowledged the fact recorded by the Human Rights Defender that the application of detention as a preventive measure cannot deprive an individual of their electoral rights, but on the other hand, by resorting to formal interpretations, they are taking the matter along a path that provides bases for denying the realization of a person’s constitutional rights.

Specifically, they delve into the issues of the detainee’s departures and visits, asserting that “to understand the procedure for applying the constitutional stated norm [Article 48], and to establish the presence of jurisdiction of the head of the correctional institution in this context,” they reference provisions of the law on “Detention of Arrested and Incarcerated Persons” to show that there are no grounds for ensuring mutual communication of the detainee with the outside world and transferring them to places outside the institution.

The Ministry of Justice stated that short-term departures “can only be provided by decision of the authority conducting the criminal proceedings and only in cases of death or life-threatening serious illness of a close relative of the incarcerated person, or in case of a natural disaster causing significant material damage to the detainee or their family.” Regarding visits, the Minister noted that they were prohibited by a decision of the authority conducting the proceedings, thus in such prohibitory conditions, this option cannot be discussed.

It is evident that these demands have no relation to ensuring a person’s constitutional electoral rights in a specific situation. Therefore, such a position of the Ministry of Justice is absolutely unacceptable, refusing to fulfill the obligation while attempting to create bases for limiting a person’s electoral rights that do not exist under the Constitution.

The Human Rights Defender firmly asserts that they possess comprehensive knowledge of both legislative regulations and the international and constitutional requirements based on which the Government of the country, and specifically the Ministry of Justice, is obligated to ensure the realization of fundamental human rights and freedoms.

How can such a formalistic approach be exhibited towards a person’s constitutional electoral rights, which lie at the foundation of shaping the country's democracy? Moreover, how can the issue of guaranteeing a person’s right to choose and be elected be conditioned by the will of the body conducting the proceedings when the Constitution does not foresee any grounds for limiting such rights?

Once again, the Human Rights Defender emphasizes that the resolution of this matter should not be dependent on the will of the bodies conducting criminal proceedings, as it has no connection with the subject matter of the criminal case, and furthermore, this concerns the electoral rights guaranteed by the Constitution of the Republic of Armenia, for which there are no grounds for deprivation in the specific situation.

Finally, the Ministry of Justice, once again resorting to formal interpretation, attempts to render the realization of a person’s constitutional right unrealistic, concluding that the head of the correctional institution is not authorized to independently transfer the detained individual to the meeting location or provide a visit, citing Article 6 of the Constitution, according to which state and local self-government bodies and officials are empowered to perform only those actions for which they are authorized by the Constitution or laws.

This reference to a constitutional article is fundamentally unacceptable in this case, under which, as required, state bodies frequently “hide.” It cannot be overlooked that another article of the Constitution, which is not subject to amendment, states that “a person in the Republic of Armenia is the highest value (...) Respect for and protection of the fundamental rights and freedoms of man and citizen are the duties of public authority. Public authority is limited by the fundamental rights and freedoms of man and citizen as immediately enforceable rights” (Article 3).

The Human Rights Defender finds this approach of the state body deeply concerning as it creates a dangerous precedent. The Ministry of Justice must ensure the fulfillment of the constitutional requirements to guarantee the electoral rights of the detained council member, especially as it is possible to enable the participation of the detained council member in the first meeting through other means, such as via video conferencing or otherwise expressing their position or otherwise realizing their constitutional electoral rights.

In this specific case, it pertains to the participation of Mamikon Aslanyan, who lodged a complaint with the Human Rights Defender, in the council meeting, given that the first meeting of the Vanadzor council has yet to be convened, during which the issue of selecting the community leader will be decided. Each citizen who supports a council member (regardless of whether that member is detained or not) has voted for a community leader candidate with the expectation that this individual will be the leader of their community. In other words, the definitive and complete realization of a citizen's electoral rights implies that the mentioned members of councils participate in the first meeting, where the election of the community leader will occur and exercise their right to vote. This is the essence of representative democracy. It is through the electoral rights that the democratic system of the country is formed. The same principle applies to parliamentary elections and the formation of the Government,” states the announcement.