The rights of persons deprived of liberty are considered solely in the light of their content — Response of the Ministry of Justice to the Report of Human Rights Defender

On 3 February, the Ad Hoc Public Report of the Human Rights Defender on "The inadmissibility of permanent presence of a penitentiary officer in the hospital room of a person deprived of liberty (with the example of a detained person)” was published.

The Ministry of Justice deems it necessary to emphasise that safeguarding the rights of persons deprived of liberty is always considered in the light of their content, excluding any formal approach.

This claim is more vividly reflected in the sector-specific reforms agenda, within the scope of which the steps taken both individually and in combination, serve as a record of systemic progress. Integrating the prison medicine sector into the public health sector has been targeted as the final outcome in particularly the agenda for reforms in the prison medicine sector. This means that the same level of medical care and services existing in the country must be available for persons deprived of liberty as for the general population, excluding manifestations of discrimination due to legal status.  

Touching upon the content points of the Report, the Ministry deems it necessary to set aside the following observations:

• The legislative grounds for organising the medical sanitary care and medical care and prophylaxis for arrested and detained persons are stipulated by the Law of the Republic of Armenia "On holding of arrested and detained persons", whereas the procedures for medical sanitary care and medical care and prophylaxis are established under secondary legislative acts. In other words, from the complex analysis of the regulations of the specified Law it follows that the power to hold arrested and detained persons at medical institutions is clear and predictable; what is also clear is that the Penitentiary Service is also vested with such power; as for the procedure under which the power for holding is exercised, the Law reserves the power to accept the procedure for the Government of the Republic of Armenia and the authorised body. Regulating procedural issues at the level of a secondary legislative act may be accepted as a phenomenon restricting the right of a person. Besides, it is logical that all procedural issues may not be subject matter of the Law, proceeding from the presumption of reasonableness. As a matter of fact, the Human Rights Defender also shares this view.
• In any case, regulating procedural issues under a secondary legislative act may not be considered as benefitting from the "umbrella" of the Law and may not be interpreted as "justification" for interfering with the rights of a person. As mentioned, the legal grounds for organising the medical and sanitary care and medical care and prophylaxis are provided for by the Law, and as for the question of how those grounds must be applied, the regulations of secondary legislative acts provide the answer to that question from the procedural perspective. In these conditions, it is not clear, to say the least, how the regulations of secondary legislative acts, which provide the details about control over a person, can be considered as inconsistent with the Law in terms of volume or give rise to misconception of disproportionate interference with the rights of a person.
• For the purpose of ensuring confidentiality during the conduct of medical examinations and consultations, the latter are conducted (with the example of a detained person) beyond the limits of hearing of an officer of the sentry post. In such conditions, the officer of the sentry post does not go beyond the scope of his or her power and does not take any action aimed at hindering the conduct of medical examinations and consultations or disclosing medical secrets or degrading the dignity of a person. Accordingly, it can be stated that the guiding principles of confidentiality of medical care and services may not be violated.

Alongside this, the officer of the sentry post has a duty to ensure effective visual control, which is logical, taking into account the fact that the officer of the sentry post oversees the person deprived of liberty and ensures security. From this perspective, it should be noted that the officer of the sentry post has acted in compliance with the regulations of Article 6 of the Constitution. In the conditions of the existing legislative regulations, performance of actions that do not derive from the volume of powers vested in the office of the sentry post, may entail criminal liability. Thus, we believe that considering, in essence, the activities carried out in compliance with the Constitution and laws as a formal approach, may not be considered as acceptable in any way.

• It should not be forgotten that a penitentiary institution itself is a specially protected zone, and the forces for ensuring security may not be compared with the forces ensuring security within a civilian medical institution. It is important to emphasise that from the perspective of the qualitative aspect of ensuring safety within a civilian medical institution, it is necessary to ensure the required balance between the right to health-care and the measures that are used to safeguard security.
• Being aware of the existing approaches in international jurisprudence, it is a well-known fact that the European Court assesses the existence or absence of violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in combination with all the circumstances under a case. Viewing the fact of being under the control of an officer of the sentry post in the context of Article 3 may not be considered as acceptable, especially when the guiding principles of confidentiality of medical care and services are not violated.
• As far as informing the Defender on the sector-specific reforms mentioned in the report is concerned, we deem it necessary to state again that the reforms agenda of the Government in the prison health-care sector is quite ambitious. The prison health-care sector is a living organism that needs to be constantly improved and act in line with the current development trends, just like the public health sector. The implementation of reforms should never be perceived as a step to cover up the possible violations of the rights of a person. Just the opposite, the Government in general, and the Ministry in particular, is consistent with the disclosure of any case of violation of the rights of a person when there are objective and reasonable grounds.

Once again, the Ministry of Justice underscores its approach according to which safeguarding the rights of any person deprived of liberty is in the centre of its attention on a daily basis, regardless of the status of a particular person or the degree of public interest about that person. And, most importantly, the mentioned approach should lie at the core of the activities of any person or structure dealing with the protection of human rights.