a) Armenia / b) Constitutional Court / c) / d) 12-09-2009 / e) DCC-827 / f) On the conformity with the Constitution of Article 285.2.2 of the Code of Criminal Procedure / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950.
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Arrest.
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Detention pending trial.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial.
Keywords of the alphabetical index:
The realisation of the right to be brought before a tribunal and for one's case to be heard is directly and inextricably linked with actually keeping somebody in custody i.e. isolating them physically from society. The obligation of the state to guarantee the implementation of this right arises at the point where somebody is deprived of their liberty and physically isolated from society. The safeguards built into Article 16 of the Constitution, as well as Article 5 ECHR, only begin to operate when the state actually deprives someone of their liberty. A person subject to search procedures is not deprived of his or her liberty, and does not therefore benefit from the safeguards mentioned above, or the right to be heard in court when the possibility of detention as a restriction comes up in a case in his or her absence.
The Constitutional Court was asked by an individual to assess the constitutionality of Article 285 of the Criminal Procedure Code. The applicant suggested that because this Article prescribes the possibility of detention for someone subject to a search procedure, it is in breach of Article 16 of the Constitution, which states that only arrested persons may be detained.
The Constitutional Court reviewed the constitutional legal contents of Article 16 of the Constitution and, having considered the subject and aim of the legal regulation of Article 16.3, found that it does not define the order of implementation of the institutes of arrest and detention. Neither do they make clear the succession of the requisite decisions on arrest and detention made by the competent bodies. Arrest is not considered as a binding prerequisite for detention; and so the fact that an arrest has not taken place does not rule out the possibility of detention. The Constitutional Court also emphasised that when those drafting the Constitution set out in Article 16.1 the cases where someone would be deprived of their liberty, the legislator was left with the discretion to choose the forms of deprivation of liberty and the goals and grounds of the measure. No stipulation was made as to the kind of procedural measures that can be undertaken in each concrete case or in order to achieve a concrete goal. The Code of Criminal Procedure, in line with Article 16.1, has determined arrest and detention as procedural measures for achieving separate legitimate goals, and at the same time defines the function, aim, and grounds of each. The Constitutional Court stated that the possibility of the binding succession of the implementation of the institutions of arrest and detention is also excluded in the context of the essence, goals, and grounds of implementation of these institutions.
The Constitutional Court also highlighted the issue of safeguarding the right to be heard before a court prescribed by Article 5.3 ECHR when a decision is taken to detain someone who is being searched. Because the realisation of the right to be brought before a tribunal and to be heard is directly and inextricably linked with actually keeping someone in custody (isolating them physically from society), the Constitutional Court found that the state's duty to guarantee the implementation of this right arises from the point where the person is actually deprived of his or her liberty and cordoned off from society. In other words, all guarantees prescribed by Article 16 of the Constitution, as well as Article 5 ECHR, only start functioning at the point where someone is actually deprived of liberty by the state. A person subject to search procedures is not actually deprived of his or her liberty and so does not enjoy these safeguards, or
the right to be heard by a court when the issmexue of detention as a restrictive measure arises during his or her absence. Therefore, if a decision is taken to choose detention as a measure of restriction during someone's absence, this does not result in a violation of rights guaranteed by Article 16 of the Constitution and Article 5 ECHR.