Armenia

1.The legal protection of witnesses and pentiti is regulated by the criminal procedure legislation of the Republic of Armenia.

According to Article 98 of the Criminal Procedure Code of the Republic of Armenia (hereinafter CPC) protection is provided not only to witnesses, but also to victims, defendants, defenders and other persons participating in criminal proceedings.

In accordance with that Article, if the authority implementing criminal proceedings establishes that the above-mentioned persons need to be protected from the encroachments prohibited by criminal law, that authority, at the request of such persons or on its own initiative, shall take the necessary protection measures for those persons by issuing the relevant order.

Moreover, if the persons participating in criminal proceedings or their close relatives have been threatened with physical violence or with the destruction of their property or with violent actions against them due to their participation in the criminal proceedings, the application of protective measures by the authority implementing criminal proceedings is mandatory. If the latter refuses to apply protective measures, then the witness, the accused, the injured party or any other person participating in the criminal proceedings may obtain a judicial order for protective measures.

Article 99 of the CPC prescribes, inter alia, the following protection measures:

a) Official warning of the possible imposition of criminal liability from the court or prosecutor to any person threatening the use of violence or of another action prohibited by criminal law;

b) Restriction of access to information regarding the person under protection;

c) Provision of security to the person under protection.

The provision of security to the protected person may consist in the application of one or more of the following measures:

a) Provision of a personal escort to the protected person or his/her relative(s);

b) Guarding of the protected person's residence or of property owned or used by him/her;

c) Temporary relocation of the protected person to a place where his/her

security can be ensured;

d) Transfer of a detained person to a facility where his/her security can

be ensured.

The above-mentioned protective measures can be applied as they become necessary, by a decision of the authority implementing criminal proceedings as long as such a necessity exists. The protective measures are terminated by a motivated decision of the authority implementing criminal proceedings.

This means that protective measures can be applied at any stage of the criminal proceedings. It should be noted that even if a decision is taken to remove the protective measures, these measures can be re-implemented if, after their removal, the person is again subjected to a threat or assault or if there are other circumstances requiring the application of protective measures which did not previously exist.

The enforcement of protective measures can be combined with judicial actions or be accompanied by them without detriment to the efficiency of the protective measures.

Protective measures can be implemented in respect of any crime (the circumstances are mentioned above) and, as mentioned above, also with respect to the close relatives of witnesses and pentiti. In accordance with Article 6, paragraph 40, of the CPC, close relatives are considered to be: parents, children, adoptive parents, adopted children, siblings or step-siblings, grandparents and grandchildren, and the spouse and his/her parents.

An official warning is given to any person threatening the use of violence or other actions prohibited under criminal law: he/she is summoned to the prosecutor, the investigator or an inquest officer, who gives him/her an official warning. A record of the official warning must be drawn up, and the record must be signed by the person who has been warned.

When the protection measure applied is a restriction on access to information about the protected person, all the information on this person is removed from the criminal case materials and kept separately from the main file.

The materials separated from the main file are accessible only to the court and the criminal prosecution authorities; the other participants in the trial may view them only with the permission of the authority implementing criminal proceedings, if this is necessary to find any material circumstances necessary for the protection of the suspect or the accused.

At the request of the authority who has made the decision to implement protection measures in respect of the protected person, the competent state authorities (such as internal affairs, national security or penal institutions) may be involved in applying the protection measures required for the security of the protected person.

the Republic of Armenia there are no special laws which regulate the protection of witnesses and pentiti in relation to acts of terrorism. A structural division of the National Security Service is a specialised counter-terrorism structure whose activities are implemented in accordance with the legislation of the Republic of Armenia and with the Charter of its National Security Service.

2. The legislation of the Republic of Armenia does not consider the witness as a participant in a criminal proceeding requiring legal assistance. Such assistance is provided only to the suspect or the accused, while the witness does not fall into the category of persons who require legal assistance from the state as he/she is not subject to criminal prosecution. The witness is personally responsible for testifying on the circumstances and facts that are known to him/her (Article 86 of the CPC).

If the witness has not yet reached the age of 14, then his/her legal representative has the right to know about his/her principal being summoned to the authority implementing criminal proceedings and to accompany him/her during the investigation or judicial action.

The legal representative has the right to take part in the investigation and in any other judicial actions and:

a) to file motions;

b) to object to the actions of the authorities implementing the criminal proceedings;

c) to object to the actions of the person presiding over the trial;

d) to review the records of the investigation and other judicial actions in which he/she has taken part during the pre-trial proceedings and make comments on the accuracy and completeness of such records.

With the permission of the authority implementing the criminal proceedings, the legal representative of a minor above 14 years of age may enjoy the above-mentioned rights.

In addition, the witness (or his/her legal representative) may, at his/her own initiative and at any time, receive legal aid from a lawyer or any other person in relation to his/her testimony, but prior to any procedural action in which he/she participates. This means that the witness must personally give the authorities implementing the criminal proceedings any evidence or information on the circumstances that he/she knows about that criminal case.

A pentito has the right to a counsel at any time (from the moment he/she is arrested, detained, or arraigned, according to Article 40 of the Constitution of the Republic of Armenia and Articles 63 and 65 of the CPC): a pentito has the right to a lawyer at his/her own discretion. Moreover, Article 69 of the

Code prescribes the instances in which the presence of a defence attorney is obligatory. These include instances where the pentito expresses such a wish; it is difficult for him/her to exercise the right to counsel, or he/she is insane or has a temporary mental disorder, he/she has no command or insufficient knowledge of the language of the criminal proceedings, or he/she was a minor at the time of the crime, as well as in a number of other instances.

The mandatory involvement of a defence counsel is ensured by the authority implementing criminal proceedings.

The examination of the witness is carried out by the authority implementing criminal proceedings separately from the other witnesses, in the place where the preliminary investigation is conducted or where the witness is located (Article 206 of the CPC). A witness can be confronted with another witness if their statements contain essential contradictions. Such confrontation may also be conducted if there are essential discrepancies between the testimonies of the accused and another person (Article 216 of the CPC). Furthermore, the witness is warned that he/she will be subject to liability for refusal to testify, evasion of testimony or perjury, as well as about the right to refuse to testify against his/her spouse or a close relative (perjury and refusal to give evidence by the witness or injured party during the preliminary investigation or the trial are deemed offences against justice which are punishable by a fine, corrective labour or detention under the Criminal Code of the Republic of Armenia (Articles 338-339 of the new Criminal Code).

The pentito has the right to refuse to testify (point 6 of Part 2 of Article 65 of the CPC). Prior to the interrogation, the investigator informs the pentito of his/her right to refuse to testify (Article 212 of the CPC).

A witness under 14 years of age or, at the discretion of the investigator, under 16 years of age, is interrogated in the presence of his/her legal representative (Article 207 of the CPC). The interrogation of a deaf, mute or blind witness or pentito is conducted in the presence of a translator who understands his/her signs or sign language. If the witness has a mental illness or any other severe illness, the interrogation is conducted with the permission of a physician and in his/her presence (Articles 208 and 212 of the CPC).

The accused is interrogated separately from the other persons involved in the case. The investigator takes measures to prevent the accused from communicating with the other persons involved in the case. He/she is entitled to be interrogated in the presence of counsel.

In accordance with point 9 of Article 62 of the Criminal Code, the pentito shall be subject to a lesser penalty for his/her offence than a person who has not expressed regret for his/her offence. This Article also considers as a pentito any person who, after the commission of a crime, has given

him/herself up to the criminal investigative bodies or has contributed to the detection of the committed crime, the identification of his/her accomplices or ' has assisted in a search of the property acquired by the crime.

Furthermore, point 4 of Article 217 of the Criminal Code determines that a person who has participated in the preparation of a terrorist act is released from criminal liability if he/she contributes to the prevention of the terrorist act by informing the authorities or by other means and his/her actions do not contain other corpus delicti.

The pentito has the right to write his/her testimonies him/herself (Article 214 of the CPC).

A person who implements proceedings with respect to a witness or pentito may issue a subpoena if he/she, having been duly summoned by the authority implementing criminal proceedings, fails to come to the investigator or prosecutor without reasonable grounds. The person who has issued the subpoena must make a motivated decision to be executed by the preliminary investigation body (Article 153 of the CPC).

The security of witnesses and pentiti is provided for by the law on human rights and freedoms. It is clear from the above that a person conducting a criminal case is obliged to take protective measures, which must be based on the circumstances expressly stated by law. This means that without legal grounds the person who conducts the proceedings cannot decide to take protective measures against a person who has not threatened the witness or pentito or has not otherwise intimidated the witness or pentito into evading assisting with the investigation or trial.

3. The presence of the pentito at trial is obligatory. His/her absence adjourns the trial (Articles 302-303 of the CPC).

Once the presence of the summoned persons has been verified, the witnesses are separated to the rooms allocated to them (Articles 318-319 of the CPC).

Once the trial has begun and the plea of the defendant and the views of the parties to the trial have been heard, the person presiding over the case firstly invites the defendant to testify on the accusation and the other circumstances of the case, notifying the defendant that his/her testimony is not obligatory and his/her refusal to testify cannot be used against him.

After the testimony of the defendant, he/she is examined first by his/her counsel, by the other defendants and their counsels, by the civil defendant and his/her representative, and then by the prosecution, the injured party, the civil plaintiff and his/her representative (Article 333-336 of the CPC).

During the investigation, before the examination, the defendant is informed of his/her right to refuse to testify against him/herself, his/her spouse or close relatives. He/she is also informed that the defendant will be subject to liability for refusing to testify, for evading testimony or for perjury.

A witness under 16 years of age need not be notified about liability for refusal to testify or for evading testimony or perjury because he/she is not subject to such liability.

Witnesses are examined separately from each other and in the absence of any witnesses who have not yet been examined.

The summoned witness is examined first by the prosecution, then by the defence and thereafter by the court.

A witness that is called at the request of one of the parties is examined first by that party, then by other persons in that party and thereafter by the representatives of the other party and the court.

The examination of a minor may take place without the presence of the defendant, if this is necessary to obtain a full picture of the case and to allow an objective and comprehensive analysis.

After his/her return to the court room, the testimonies of witnesses who are minors are published for the defendant and he/she is given an opportunity to ask questions and give evidence regarding the facts told by witness (Articles 339-341 of the CPC).

The Code does not envisage the opportunity for witnesses and pentiti to testify anonymously.

4. The Republic of Armenia has signed international agreements on mutual assistance in legal matters with Bulgaria, Georgia, Greece and Romania, as well as with the Commonwealth of Independent States (CIS) (CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993).

These agreements set out the possibilities for criminal extradition. Extradition is undertaken by authorised bodies which are responsible for convicts' security and transfer from one country to another. The expenses for transfer are covered by the party that has requested extradition.

The extradited person cannot be called to account for crimes committed before he/she crossed the border of one party if his/her extradition is not a result of such actions.

some of the above-mentioned agreements (Bulgaria, Greece, CIS convention) envisage that the authorised bodies of the parties can call witnesses situated in the territory of the other parties.

The witness him/herself decides whether to travel to the territory of another country in response to a judicial call; if he/she does not wish to travel to the territory of the other country to participate in the criminal proceedings, then he/she cannot be compelled to do so.

If the witness does decide to participate, the party who has requested the call covers all the expenses of the witness. The witness travels independently, and the above-mentioned agreements do not envisage that the authorised bodies of the party requesting the call shall undertake appropriate measures to provide necessary security for him/her. These issues are regulated by the national legislation of the parties to these agreements, and we have already described above how these issues are regulated by the legislation of the Republic of Armenia.

The Republic of Armenia also is a Party to the European Convention on Extradition.

In order to improve international co-operation in the field of the protection of witnesses and pentiti, it would be necessary to develop and draft an appropriate multilateral agreement and present it for ratification by the Council of Europe member states. It would be reasonable to determine defence measures in this agreement and require that these measures be laid down in the national legislations of the member states.

Дата добавления: 2015-10-16