| Parliamentary Assembly Assemblée parlementaire |
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Honouring of obligations and commitments by Armenia
Doc. 10027
12 January 2004
Report
Committee on the Honouring of Obligations and
Commitments by Member States of the Council of Europe
Rapporteurs: Mr René André, France, Group of the European People’s Party, and
Mr Jerzy Jaskiernia, Poland, Socialist Group
Summary
2003 has been a busy electoral year for Armenia and as a result no further progress has been made in the current reforms. Nevertheless, since September 2003, undeniable efforts by Armenian authorities are once more showing a real political will to making progress towards honouring obligations and commitments which Armenia entered into : it abolished the death penalty, adopted a new Criminal Code, adopted a law on the Ombudsman, created an alternative military and civilian service, adopted a law on the mass media and a law on freedom of information and revised the law on radio and television broadcasting, and honoured all its commitments with regard to conventions.
However, the Monitoring Committee cannot but express its profound disappointment at the conduct of the presidential and parliamentary elections held in 2003 which gave rise to serious irregularities and massive fraud.
The Monitoring Committee also expects further substantial progress as regards the functioning of the judicial system and the independence of the judiciary, the situation in Armenian prisons and the conditions of detention, the misconduct of law enforcement officials, freedom of demonstration, the revision of the Administrative Code, the revision of the Electoral Code, media pluralism, increased local self-government, the fight against corruption, and the respect of religious freedom.
The Parliamentary Assembly also calls on the Armenian authorities to speed up the agenda for the revision of the Constitution and to take immediate measures to implement some other commitments, in particular by appointing the ombudsman in full compliance with the Assembly recommendations, and by releasing conscientious objectors imprisoned without delay.
I. Draft resolution [Link to the adopted text]
1. Armenia has been a member of the Council of Europe for three years. On 26 September 2002, the Assembly considered its first report on Armenia’s progress in honouring its obligations and commitments. It concluded in Resolution 1304 that “since its accession to the Council of Europe, Armenia has made substantial progress”, while regretting that it had not honoured some fundamental commitments within the time limits previously agreed upon.
2. 2003 has been a busy electoral year for Armenia and as a result no further progress has been made in the current reforms. Nevertheless, since September 2003, Armenia’s undeniable efforts show that it is once more committed to making progress towards honouring its obligations and commitments.
3. The Assembly notes that Armenia has honoured almost all of its commitments with regard to conventions and welcomes the fact that it has ratified Protocol No. 6 to the European Convention on Human Rights, the European Outline Convention on Transfrontier Co-operation and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.
4. It considers that the forthcoming ratification of the revised European Social Charter should permit positive social progress in Armenia and asks the Armenian authorities to launch a comprehensive debate on how social rights should be effectively promoted.
5. The abolition of the death penalty as a result of the ratification of Protocol No.6 to the European Convention on Human Rights in September 2003, constitutes essential progress in the honouring of commitments and is a positive, strong and symbolic signal.
6. In this connection, the Assembly welcomes the adoption, in April 2003, of a new Criminal Code that no longer includes the death penalty; it takes note of the Armenian authorities’ assurances that the law concerning the implementation of the Criminal Code, which was adopted at the same time and maintained the death penalty for a number of serious crimes, has become obsolete following the entry into force of Protocol N° 6.
7. It notes that the presidential decree of 1 August 2003 commuting the death sentences of 42 persons to life sentences has raised strong protests from some of them. The Assembly believes that this issue should be dealt with on a case-by-case basis and urges the authorities concerned to re-examine as soon as possible the cases of those who had asked for a change of sentence or a retrial.
8. As regards domestic legislation, the Assembly acknowledges the significant law-making activity since September 2003. It particularly welcomes the adoption of a new Criminal Code, the law on the Ombudsman, the law on alternative military service, the law on the media and the law on radio and television broadcasting.
9. The Assembly notes that a number of legislative commitments – increased local self-government, introduction of an independent ombudsman, establishment of independent regulatory authorities for broadcasting, modification of the powers of and access to the Constitutional Court, reform of the Judicial Council, etc – are still subject to a revision of the Armenian Constitution. The rejection of constitutional reform in the referendum held in May 2003 has caused a delay in the entry into force of these fundamental reforms, most of which were to be completed by specific deadlines, stipulated in the Assembly’s Opinion on Armenia’s accession to the Council of Europe; these deadlines have now expired.
10. The Assembly considers that these commitments must not be deferred any longer and invites the Armenian authorities to speed up the revision of the Constitution. It takes note of the authorities’ resolve to genuinely involve the opposition parties and civil society in discussions about the future of the country’s institutions. Nevertheless, it expects the Armenian authorities to establish and keep to a detailed timetable and to rapidly prepare draft amendments to the Constitution and to present them to the Council of Europe for expertise by the end of April 2004, so that a referendum can be held as soon as possible and in any case not later than June 2005.
11. The Assembly notes that the law on the Ombudsman, adopted in October 2003, stipulates that, pending the revision of the constitution, the Ombudsman shall be appointed by the President of the Republic. The Assembly expressly recalls its Recommendation 1615 (2003) on the Institution of Ombudsman, and believes that the planned method of appointment does not provide sufficient guarantees of the independence of the ombudsman, who must have the citizens’ full confidence. It urges the Armenian authorities to set up a transparent and credible interim procedure enabling the Armenian National Assembly, including the opposition parties, to examine and give their opinion on candidatures, while officially preserving the President’s right to nominate the successful candidate.
12. With regard to the right to free and fair elections, the Assembly cannot but express its profound disappointment at the conduct of the elections - the presidential election in February and March 2003 and the parliamentary elections in May 2003 - which gave rise to serious irregularities and massive fraud and led the international observers to conclude that the electoral process as a whole had not complied with international standards. It invites the Armenian authorities:
i. to revise the Electoral Code in close co-operation with the Council of Europe and the OSCE/ODHIR, especially the provisions concerning the composition of electoral commissions, the role and status of observers and the transparency of the vote counting and totalling of the results;
ii. to conduct a thorough investigation into the electoral fraud and put an end to the judicial impunity of those responsible for it by the end of 2004.
13. The Assembly is alarmed that the fundamental reforms concerning the judicial system and the independence of the judiciary have still not been completed. It urges the Armenian authorities to:
i. present by April 2004 a precise timetable for the effective implementation of these reforms;
ii. adopt the law on the status of judges, the law on the Judicial Council and the law on the judiciary by the end of 2004, taking account of the Council of Europe’s recommendations and expert opinions.
14. The Assembly is shocked by the scandalous use that continues to be made of the arbitrary procedures concerning administrative detention provided for in the Administrative Code, which is totally incompatible with its strongly worded statement in September 2002 in Resolution 1304 that the Armenian authorities should no longer make use of these procedures. It firmly condemns the arrest and conviction of over 270 people – members of the opposition parties, sympathisers and office-holders – between the two rounds of the presidential election and at the end of the second round. It expects the Armenian authorities to discuss by February 2004 the administrative detention issue in the Administrative Code in co-operation with Council of Europe experts and to send the draft amendments for Council of Europe’s expertise by April 2004.
15. The Assembly asks the Armenian authorities to immediately begin examining, in co-operation with the Council of Europe, the question of the balance to be struck between freedom of assembly and demonstration and respect for public order and to adopt a law on demonstrations and public meetings in full compliance with Council of Europe principles and standards.
16. As regards criminal legislation, the Assembly:
i. is alarmed at the fact that on 5 November 2003 the Armenian National Assembly adopted amendments to the Criminal Code excluding persons serving life sentences from amnesty or conditional release and observes that these provisions are entirely contrary to Committee of Ministers Recommendation Rec(2003)22 on conditional release (parole). It urges the Armenian authorities to repeal them without delay;
ii. asks the Armenian authorities to start work on revision of Articles 135, 136 and 318 of the Criminal Code by March 2004, in co-operation with Council of Europe experts, to remove any possibility of making insult and defamation subject to a prison sentence;
iii. urges Armenia to undertake the revision of the Code of Criminal Procedure without delay, in co-operation with the Council of Europe experts and with due regard for the recommendations already made and those yet to be made.
17. The Assembly expects the Armenian authorities to make further efforts to improve conditions of detention, which includes speedily implementing the recommendations of the Committee for the Prevention of Torture.
18. It also asks the authorities to take resolute and more active steps to remedy misconduct by law enforcement officials, especially acts of violence, ill-treatment, corruption and bribery, which remain commonplace. It expects the authorities to revise the law on the police by March 2004 in compliance with the Council of Europe’s recommendations.
19. As regards freedom of expression and media pluralism, the Assembly is concerned at developments in the audiovisual media in Armenia and expresses serious doubts as to pluralism in the electronic media, regretting in particular that the vagueness of the law in force has resulted in the National Television and Radio Commission being given outright discretionary powers in the award of broadcasting licences, in particular as regards A1+ TV channel. However, it notes the adoption in December 2003 of the law on the mass media and a law amending the law on radio and television broadcasting.
20. As regards local self-government, the Assembly:
i. takes note of Recommendation 140 (2003) of the Congress of Local and Regional Authorities of Europe (CLRAE) on local democracy in Armenia;
ii. expects the Armenian authorities to draw up by April 2004 and adopt by the end of the second quarter of 2004, in full co-operation with the CLRAE and the Council of Europe experts, a law on the status of Yerevan, a law on the territorial administration of the state, a law on municipal staff and a law amending the law on local self-government;
iii. asks the Armenian authorities to submit by April 2004 a specific and definitive timetable for the implementation of these reforms.
21. The Assembly is concerned at the scale of corruption in Armenia, which has reached intolerable proportions. It expects the Armenian authorities to undertake a genuine change of attitude and express a real political will to take effective action against corruption, and particularly:
i. to take practical action on the recommendations addressed to them by international organisations in the anti-corruption working group;
ii. to speedily draw up a modern and comprehensive law on the fight against corruption, including practical measures;
iii. to join the Council of Europe’s Group of States against Corruption (GRECO) in the near future;
iv. to ratify the Criminal Law Convention on Corruption and sign and ratify the Civil Law Convention on Corruption as soon as possible.
22. The Assembly welcomes the adoption of the law introducing an alternative military and civilian service broadly consistent with Parliamentary Assembly Recommendation 1518 (2001) on exercise of the right of conscientious objection to military service in Council of Europe member states. However, it considers the length of the alternative civilian service, set at 42 months, unacceptable and excessive and asks that the law should be amended on this point, reducing the length of service to 36 months before it comes into force on 1 July 2004.
23. It points out that Armenia undertook on joining the Council of Europe to pardon conscientious objectors serving prison terms. It expresses its indignation at the fact that 20 or so young people who refuse to perform military service are still in prison. It therefore demands that they be released immediately by presidential pardon pending the entry into force on 1 July 2004 of the law on alternative civilian service.
24. As regards freedom of religion, the Assembly:
i. notes that, despite the commitment made and the Assembly’s repeated appeals, Jehovah’s Witnesses are still not registered as a religious organisation. It asks that this registration be done without delay, after their statute has been brought into conformity with the legislation in force;
ii. takes note of the assurances given by the Armenian authorities that Order No.551-A issued by the Minister of the Interior, which leads to serious discrimination and infringement of freedom of conscience and religion, has indeed been repealed;
iii. asks the Armenian authorities to set up a truly independent body representing all Armenia’s religious organisations and communities.
25. The Assembly also calls on the Armenian authorities to take effective steps, in co-operation with the international organisations concerned, to prevent and combat trafficking in women and minors for prostitution purposes.
26. As regards the settlement of the conflict in Nagorno-Karabakh, the Assembly:
i. notes that there has been no progress in the negotiations on a settlement of the conflict in Nagorno-Karabakh and the other occupied territories of Azerbaijan;
ii. calls on the Armenian and Azerbaijani authorities to intensify top-level contacts in order to reach a peaceful settlement of this issue soon;
iii. is disturbed at the serious incidents that took place in the north-east border area in July and August 2003, which are reported to have caused 15 deaths.
27. Recalling that in Opinion 221 (2000) the Assembly considered that the simultaneous accession of Armenia and Azerbaijan could help to establish the climate of trust and détente needed for a peaceful solution to the Nagorno-Karabakh conflict, and noting its call on the Armenian and Azerbaijani authorities to continue their dialogue to give new impetus to regional co-operation which could contribute to this climate; the Assembly calls on the Bureau of the Assembly to consider how regional parliamentary dialogue and co-operation involving the speakers of parliaments, that had been established, can be restored and progress as soon as possible.
28. The Assembly expresses satisfaction at its excellent co-operation with the Armenian authorities, their open-minded attitude and the quality of the ongoing dialogue on compliance with obligations and commitments.
29. The Assembly recognises that Armenia has recently made considerable efforts to honour the obligations and commitments entered into. However, given the obligations and commitments that remain to be honoured, particularly those concerning pluralist democracy, the Assembly decides not to end the current monitoring procedure until Armenia has made further substantial progress on the outstanding commitments and notably has proved that it is able to organise the next presidential and parliamentary elections in compliance with international democratic standards.
II. Explanatory memorandum by the co-rapporteurs
I. Introduction
II. Signature and ratification of Council of Europe conventions
III. Upholding pluralist democracy
A. The electoral process: the democratic legitimacy of the authorities challenged
- the ballots of 19 February and 5 March 2003
- the demontrations
2. The parliamentary elections
3. Consequences
- political reactions
- judicial review of the elections
- revision of the electoral code
IV. Rule of law: constitutional and institutional reform further postponed
A. Revision of the Constitution
3. Criminal Code, Code of Criminal Procedure, Law on the police
C. Functioning of institutions
3. The police
A. Abolition of the death penalty
1. Ratification of Protocol No. 6 to the European Convention on Human Rights
2. The adoption of the new Criminal Code
3. Commutation of death sentences
C. Situation in the armed forces and law on alternative service
1. The fate of Jehovah Witnesses imprisoned for refusal to perform military service
1. Legislation concerning the media
VI. The Nagorno-Karabakh conflict
Appendices
II. Resolution 1304 (2002) on the honouring of obligations and commitments by Armenia
III. Programme of the co-rapporteur’s visit to Armenia (20-24 August 2003)
VI. Council of Europe conventions ratified, signed and not ratified by Armenia.
I. Introduction
1. In becoming a member of the Council of Europe on 25 January 2001, Armenia consented to honour the obligations placed on all member states under Article 3 of the Organisation’s Statute, together with a number of specific undertakings set out in Opinion 221 (2000) on Armenia’s application for membership of the Council of Europe (see Appendix I).
2. On 26 September 2002 the Monitoring Committee presented the Parliamentary Assembly with its first report on the progress achieved by Armenia in honouring the obligations and commitments accepted during its twenty months of membership of the Council of Europe.
3. The report, the result of which was the Assembly’s adoption of Resolution 1304 [1], acknowledged that Armenia had “made substantial progress ... since its accession”, expressed regret that certain fundamental commitments had not been honoured within the time agreed earlier.
4. The Assembly accordingly made a number of criticisms, some severe, and urgently requested the Armenian authorities :
- to abolish the death penalty totally and without any exceptions or restrictions and, more specifically, to adopt a new Criminal Code in keeping with the recommendations of the Council of Europe by the end of 2002 and to ratify Protocol No. 6 without delay and at all events in time for the part-session in June 2003;
- to proceed further with the reform of the judicial system, particularly in order to guarantee full independence of the judiciary;
- to revise the Administrative Code without delay, and to cease applying the provisions thereof concerning administrative detention;
- to enact the law on the ombudsman;
- to amend forthwith the law on broadcasting;
- to introduce alternative civilian service;
- to speed up reforms in the sphere of local self-government;
- to register the Jehovah’s Witnesses as a religious organisation;
- to embark resolutely on the battle against corruption;
- to improve conditions of imprisonment;
- to investigate acts of torture, violence, ill-treatment and extortion committed by law enforcement officers;
- to find equitable solutions for persons and families affected by privatisation operations.
5. The monitoring procedure was opened three years ago. The year 2003 was a twofold crucial test for Armenia – firstly of its ability to sustain the pace of the reforms in accordance with the undertakings accepted, and secondly of its ability to organise free and fair elections. The elections held this year were in fact most eagerly awaited in order to assess the extent to which pluralist democracy had been furthered and consolidated in Armenia.
6. This report is largely based on the interviews and the information obtained during our visit to Armenia from 20 to 24 August 2003[2]. It takes account of subsequent developments.
7. We extend grateful thanks to the Armenian parliamentary delegation for the excellent organisation of our programme. We were able to hold extremely frank discussions at all levels. Our thanks are also due to His Excellency Mr Marco Clemente, Italian Ambassador to Armenia, Mrs Natalia Voutova, Special Representative of the Secretary General of the Council of Europe in Armenia, and those in charge of the Council of Europe Information Centre for their active assistance in the successful conduct of our visit and their hospitality.
B. Economic and social situation
8. The monitoring procedure is often criticised for scrutinising only the political and legal aspects and ignoring the underlying social and economic problems with an effect on how the inhabitants fare in their daily lives.
9. On that score, Armenia’s position in fact is still difficult. The country records a double-figure economic growth rate – GDP rose by over 14 % in the first quarter of 2003 – which is an undeniable success for the government. It nonetheless does not mean any substantial improvement in standard of living for the vast majority of the population, 55 % of whose income remains below the poverty line. The average monthly wage is lower than 50 USD. To give an example, the retirement pension paid by the State is 14 USD per month. Disparities between the very rich and the poor seem to have become remarkably accentuated. Here is a challenge which must be addressed by the government.
10. During our visit, certain international observers drew our attention to the undeniable collusion between the business community, money and the political power, which is said to be currently at an unprecedented level. They also expressed concern regarding Armenia’s move towards a plutocratic power system run by an oligarchy where nepotism serves as the institutional modus operandi. Privatisation of enterprises, land and real estate is said to have frequently proceeded under reprehensible conditions. There are many allegations and rumours denouncing certain real estate investments as dubious and connected with money laundering.
11. The level of corruption in Armenia is a matter for concern. Even though Armenia can suffer comparison with its neighbours[3], the issue remains serious. International organisations (World Bank, IMF, OSCE) have stepped up activities and financial programmes for the last two years to enable the Armenian authorities to devise and deploy a national corruption-fighting strategy. A working group of international experts which was financed by the World Bank finalised the strategy in August 2002. Discussions on the strategy are still in progress in the government. The OSCE is responsible for co-ordinating an anti-corruption working group and is proceeding with an action plan. The Armenian authorities should now draw up a modern and comprehensive law on the fight against corruption including effective measures, and join as soon as possible the GRECO (Group of States against Corruption) of the Council of Europe.
12. The IMF has become anxious about the functioning of public finances, the Armenian taxation system, and the low rate of recovery of income tax. The IMF particularly stigmatises the fact that by concealing their profits, large firms refuse to aid the national effort. Widespread allegations implicate some companies or “businessmen”, reportedly with backing at the seat of power, who consider themselves exempt from paying tax.
13. All these features point to the progress which needs to be made to build up a truly law-based State system in which the existing laws are genuinely enforced. They also give reasons for ordinary citizens not to give the law or justice much credence.
14. The Armenian authorities appear to have become aware recently of the extent of trafficking in women and children for purposes of prostitution. Armenia has become a source country for the traffic in young women, who are sent to Turkey, Russia and the United Arab Emirates. This phenomenon has been pinpointed by the international organisations on the scene (IOM, Unicef, OSCE) since 1997-98, and a subsequent marked upsurge in it is reported. A draft for a national plan of preventive and repressive action against trafficking in human beings was to be approved by the Armenian government in July 2003.
II. SIGNATURE AND RATIFICATION OF Council of Europe CONVENTIONS
15. As at 31 December 2003, Armenia is a party to 30 Council of Europe conventions. It has satisfied almost all its commitments in this regard.
16. Since our last report a year ago it has ratified three further instruments, including Protocol No. 6 to the European Convention on Human Rights. Ratification should have occurred the year after accession, theoretically January 2002, but took place on 29 September 2003. This is a fundamental step forward in meeting the commitments; however, it has taken a year and a half of waiting and considerable insistence by the Council of Europe to induce the authorities to honour at last the undertaking accepted (see paras. 122 et seq. below).
17. Armenia has (on 31 October 2003) ratified the European Outline Convention on Transfrontier Co-operation and the protocols thereto, and the Convention on the Laundering, Search, Seizure and Confiscation of the Proceeds from Crime on 24 November 2003.
18. The authorities informed us, however, that the Parliament authorised the ratification of the European Social Charter end of December. The Charter was signed on 18 October 2001 and should be ratified within three years following accession, ie by January 2004. We welcome this move which may permit positive advances in the social sphere in the country. However, having regard to its present economic and social situation, we doubt that the Charter’s principles could be implemented in Armenia in the short or medium term.
19. Finally, we think that Armenia should envisage an early accession to the Criminal Law as well as the Civil Law Conventions on corruption. On 15 May 2003 Armenia signed the Criminal Law Convention and Protocol. Ratification of this instrument is now awaited. Concerns raised by international observers as regards the extent of corruption all over Armenia render this step urgent and indispensable.
III. UPHOLDING PLURALIST DEMOCRACY
20. Since the Assembly’s discussion of the last report on the honouring of obligations and commitments, Armenia has experienced three electoral events in succession, local government elections (20 October 2002), a presidential election (19 February and 5 March) and parliamentary elections (25 May). The presidential election, like the parliamentary elections, were the fourth to be held since independence but the first since Armenia became a member of the Council of Europe.
21. In our earlier report, we took the view that it was premature to state that political democracy in Armenia was fully stabilised. The election dates in 2003 have acted as a test particularly of Armenia’s ability to organise free, fair and democratic elections. We therefore consider it important to review these crucial events in the context of our present report.
A. The electoral process: the democratic legitimacy of the authorities challenged
22. None of the elections organised so far in Armenia since her independence has conformed to international standards. This year’s presidential and parliamentary elections were no exception. They were marked by irregularities and wholesale fraud and diverged radically from the relevant international standards. Their conduct has prompted the international observers to make the same negative appraisal on two occasions and at an interval of three months and to express disappointment over the democratic development of Armenia.
23. The elections in question were organised according to the Electoral Code, revised in July 2002 in keeping with the undertaking made “to remedy the deficiencies of the new electoral law before the next elections” (Opinion No. 221, para. 13 iii. i.). This improved legislative framework theoretically allowed elections to be held in keeping with international democratic standards.
24. The Parliamentary Assembly participated in both of the international missions to observe these elections (involving observers from the OSCE/ODIHR, the Parliamentary Assembly of the OSCE and the Parliamentary Assembly of the Council of Europe). The rapporteurs therefore refer to the conclusions of the international election monitoring missions and to the reports of the Assembly’s ad hoc observation committees.
- the ballots of 19 February and 5 March 2003
25. In both its reports on the observation of the two rounds of the presidential election [4], the Assembly’s ad hoc committee to observe the election ”regret[ted] that these elections … fell short of international standards [as to] several key aspects”. The international mission to observe the elections recorded ”serious irregularities” and concluded that ”the overall electoral process fell short of international standards”.
26. The international observation mission moreover went on to itemise the breaches and the irregularities committed : biased media coverage during the election campaign, irregularities in the lists of voters, acts of intimidation and disruption of polling, substantial manipulations and frauds on polling day, particularly ballot box stuffing, falsification of the results protocols and of the counts. Statistics on the turnout at certain polling stations or the number of ballot papers counted, or the collation of the provisional and the final results, appeared utterly implausible and unrealistic.
27. The inability of the Central Electoral Commission to publish the preliminary results promptly at the end of the first round and to aggregate the detailed results of the polling stations led to political confusion and heightened distrust towards the two opposition candidates and their supporters.
28. According to our talks with him during our visit, Stepan Demirchyan clearly still considers himself the real winner. Artashes Geghamian, who came third, also believes that he was robbed of a victory.
29. For our own part, we are convinced that the malpractices were not contrived for the benefit of a single candidate, but that many supporters were inclined to manipulate the vote to their candidate’s advantage. We concur with the OSCE that whatever the magnitude of the fraud, this could not have been such as to invalidate the final results, and that there is no doubt as to the real winner of these elections.
30. The Central Electoral Commission registered 34 complaints for the 1st round and 99 for the second.
31. In its final report of 28 April 2003, the OSCE/ODIHR concludes that “the failure of the 2003 presidential election to meet international standards lay not in technical or procedural lapses, but in a lack of sufficient political determination by the authorities to ensure a fair and honest process”.
- the demonstrations
32. The day after the first round of the presidential election held on 9 February 2003, several demonstrations and protest meetings took place in Yerevan and several towns at the prompting of opposition political parties.
33. Between the two rounds of the elections, and as from 22 February, more than 200 people were arrested by the police at the behest of the authorities – among them some members of the political parties in opposition or of their campaign staff, and agents of these parties. Despite the Parliamentary Assembly’s stipulation that the authorities must no longer avail themselves of the arbitrary procedure of administrative detention prescribed by the Administrative Code [5], these persons were arrested, taken into custody without notification of their families then brought before the courts and sentenced to a fortnight’s administrative internment in over 80 cases, or to fines in 65 other cases. The persons concerned were tried in camera and with few exceptions did not receive the assistance of a lawyer. Many were unable to participate in the second round of the election.
34. Further arrests were made after the second round of the election. The Ministry of Justice has acknowledged that 132 people were arrested between 17 and 25 March, 69 of them being sentenced to an “administrative” custodial penalty and 63 to a fine. According to the OSCE, 77 is the number sentenced to a term of imprisonment over that period.
35. In our previous report we commented on the outrageousness and arbitrariness of this summary procedure prescribed by the Administrative Code. An authentic remnant of the Communist style of justice inherited from the Soviet era, this procedure denies the person charged the right to inform his/her family or to request the immediate assistance of a lawyer, and enables a judge, under an arrangement for immediate trial in camera, to have him/her held for a fortnight maximum. This procedure is simply disgraceful (see also paras. 105 et seq.).
36. The courts have displayed independence in this matter. The decisions of the Court of Appeal to release the demonstrators imprisoned between the two rounds of the presidential election are to be welcomed. The Supreme Court subsequently set aside some of the convictions. The Constitutional Court itself held that the practice in question infringed the European Convention on Human Rights.
37. During our August 2003 visit, the authorities justified their decision to arrest and convict these demonstrators by invoking the need to shield law and order from their misdeeds. They claim that the demonstrators were just thugs, “antisocial elements”, alcoholics or drug addicts. This sort of talk has a ring to it that is like a revival of the evidently not so distant Soviet past.
38. We expect the authorities to do their utmost in the future to reconcile the freedom to demonstrate and the freedom to come and go with respect for law and order. This right must be secured to all and sundry, especially at election time. Preservation of law and order must not serve to condone wrongful deprivation or restriction of freedom to form assemblies and to demonstrate.
39. In all countries, demonstrations can occasion misbehaviour, depredations and acts of vandalism; it is for the police to apprehend any destructive hangers-on, for the public prosecutor to hear the complaints, and for the courts to hand down the convictions, strictly in accordance with the rights of the defence and with the guarantees of security of person. Clearly, Armenian legislation is in urgent need of adaptations [6].
2. The parliamentary elections
40. The joint press release of the international observation mission published on 26 May after the elections was critical: “Parliamentary elections … marked improvement over the recent presidential voting, but failed to meet international standards in several key areas”. On 31 July the OSCE published its final report on the parliamentary elections, setting out a coherent, measured position. We have borrowed its terms and conclusions.
41. These elections were marred by a serious lack of transparency and a considerable number of deceits and irregularities. The ad hoc commission for the observation noted that “significant problems were observed during the counting process in over 30 % of polling stations observed. Theses included the falsification of protocols, ballot stuffing, stealing of ballots and the removal of uncounted ballot papers. At many polling stations counting procedures were poorly followed, criteria for invalidation of ballots were inconsistently applied and proxies and observers were denied a clear view of the process.”[7]
42. According to the OSCE, the observers directly witnessed frauds and ballot box stuffing in 10 % of polling stations. The commission of these irregularities before the eyes of the observers gives some idea of the extent of the malpractice that may have occurred when their backs were turned. The OSCE nevertheless recognises that the violations and fraud were less pronounced for the parliamentary than for the presidential election.
43. In fact the figures, made public by the Central Electoral Commission on 31 May, reveal inconsistencies and speak for themselves:
- number of voters (who signed the register in the polling stations): 1 233 757
- number of used ballot-papers: 1 204 620
….. and
- number of ballot papers in the ballot boxes: 1 234 925
44. We also think the electoral process was publicly and deliberately perverted. There is a unanimous finding of fraud on a massive scale and deliberate, inadmissible and incontestable provocations, condoned by the authorities though not for their sole benefit. We find that the enthusiasm of the supporters of certain parties, which was given free rein, in itself testifies to the country’s political immaturity.
45. The observers generally note the profound lassitude, apathy and the public’s lack of confidence in the national authorities, and the erosion of the citizens’ interest in the electoral process.
46. There is many an allegation denouncing corruption in the electoral process: candidates’ purchase of an eligible position on a list[8]; bribes paid to the members of the electoral commissions or to magistrates, etc.
47. 59 appeals have been received by the Central Electoral Commission. The local electoral commissions annulled the results of the poll in three constituencies (“precincts” 12, 29 and 41) and fresh elections were conducted, properly, this time with no fraud or irregularity. They confirmed the initial results, which plainly demonstrates that when there is a real political will, a ballot proceeds in an altogether normal fashion.
48. Noting that these re-run elections in the three aforementioned constituencies ended in the same result as the initial ballot, the OSCE considers that despite the poor organisation of the elections, the irregularities were not such as to confuse the results.
3. Consequences
- political reactions
49. The opposition absolutely contests the election results and regards the established power as devoid of legitimacy in that it was improperly and fraudulently elected given the magnitude of the violations that characterised both polls. According to Stepan Demyrchyan, with whom we spoke, the election results were completely falsified. He claims that the stuffing of ballot boxes reached unlikely proportions: 300 000 extra ballot papers at the first round of the presidential election, 700 000 at the second round; 450 000 extra ballot papers at the parliamentary elections. The first stage of modern democracy, he says, is to have free, transparent elections.
50. The authorities did not react publicly at the time of our visit to the OSCE report on the parliamentary elections. During our talks, however, all those interviewed acknowledged that major fraud had occurred in both elections but were not the doing of any one political party. Where the presidential election is concerned, President Kocharian admits that there were irregularities, though not in the proportions described by the international observers, and says that he contests “80 % of the OSCE’s findings”.
51. We asked the authorities to acknowledge publicly that the democratic process had been vitiated by irregularities. Since our visit, Foreign Affairs Minister Vartan Oskanian has officially admitted the occurrences of election fraud.
52. A new Central Electoral Commission was appointed on 8 July, and its President replaced. We met the new President, Mr Azaryan, during our visit. His predecessor M. Sahradyan’s departure seems to have happened naturally; while there was no sanction, it was plainly a form of official disavowal.
- judicial review of the elections
53. In the view of the international observers, and that is a positive development, the courts displayed independence in the electoral litigation before them. The Constitutional Court had to determine various applications:
- on 27 February, an application by Artashes Geghamyan, a candidate in the presidential election, requesting the cancellation of the 1st round, application dismissed on 24 March;
- on 17 March, an application by Stepan Demirchyan, a candidate in the second round of the presidential election, challenging the results.
The Court delivered its ruling on 16 April: it deems the applicant’s contentions well-founded but does not direct that the results be invalidated (as the applicant had not substantiated that the irregularities were injurious to him), and asks the State Prosecutor to investigate the cases of fraud in 40 polling stations.
This ruling of 16 April raised an outcry for a different reason, namely the Court’s inclusion of a proposal that the authorities hold an ”referendum of confidence” in President Kocharian. President Kocharian and his supporters reacted strongly considering that it was tantamount to challenging the legitimacy of the elected President. The Constitutional Court has since reversed its position, holding early in October that the aforementioned idea had lost much of its cogency. An opposition party has nevertheless stated its intention to embark on the collection of citizens’ signatures in order to organise such a referendum. At the beginning of November, the same party also submitted to the National Assembly a bill amending the law on referendum.
54. In these two cases, the OSCE/ODIHR’s election observation mission emphasised the rigorous, professional work of the Court.
55. Concerning the parliamentary elections, the Constitutional Court has registered five applications and ordered an annulment. One of the five applications came from the “Justice Bloc” (Artarutyun) and called for the annulment of the ballot conducted under the proportional list system in the parliamentary elections. The Constitutional Court on 7 July dismissed this application.
56. Stepan Demirchyan and the other leaders of the “Justice Bloc” have decided to refer their complaint to the European Court of Human Rights.
57. What is at issue in the international observers’ opinion is the absence of judicial proceedings against perpetrators of election fraud and the climate of impunity which this created in the country. The authorities are said to have shown their inability to prosecute the fraudsters. The OSCE informs us that despite its enquiries, it does not know exactly how many complaints have been made to the Prosecutor General, or the number of criminal cases opened. The prosecution service appears to have deliberately obstructed the investigation of the complaints.
58. When questioned by us in this matter, the Prosecutor General protested against such assertions. All complaints received have been registered and transmitted to the competent regional prosecutors’ offices. 27 cases have been opened, 14 of which have already been investigated, 6 referred to the appropriate court, and one closed. The plaintiffs received due summons to hearings but
59. most did not comply - some on the ground that the allegations were too general to admit of prosecution, while others refused to name the culprit or culprits of the frauds. It is difficult to identify a culprit and, when analysing the information and evidence available, to tell actual irregularity from attempted manipulation.
- revision of the Electoral Code
60. The international observers from the OSCE and the Council of Europe requested the Armenian authorities to undertake a revision of the Electoral Code in certain respects to guard against any further fraud in future ballots.
61. The authorities appeared to us very open in this matter, and assured us of their readiness to discuss the requisite amendments to the Electoral Code and to comply with any recommendations made to them, although they do not have a very exact idea of the changes that will need to be made.
62. The OSCE and the Council of Europe consider that certain provisions are inadequate and must now undergo improvement, particularly with regard to:
- composition of the electoral commissions [9],
- definition of the observers’ status and role, especially in actual supervision of returning operations, it being understood that the "agents/proxies" (candidates representatives) lack qualifications for supervising the operations and that the international observers must have unrestricted access to the polling stations and be present during the returning operations ;
- transparency in the returning process including the tallying, reckoning and totalling of the results, specifically by stipulating that the electoral commissions at the upper tiers (district electoral commissions) should publish the itemised results delivered from the lower tiers (precinct electoral commissions that cover one polling station);
- control of electoral matters by the courts, and settling of penalties for infringements.
63. What is more, the revision of the electoral rolls, which we were earlier assured would be done conscientiously in 2002 along with the population census-taking operations, is unsatisfactory. There being no central register of constituents, the observers noted a large number of double registrations and registrations of deceased persons or of citizens resident abroad.
64. We are nevertheless convinced that an electoral code however perfect cannot guarantee by itself the propriety of the democratic process in the future. That will only be possible if there is a clear political resolve to organise a ballot in compliance with the democratic norms, and a significant change in attitudes, which will take some time yet in Armenia.
65. Armenia being a country which acceded to independence only 12 years ago, one can easily understand that basic rules of representative democracy are still not thoroughly assimilated, and that the political class still lacks maturity : the majority of the parties do not have an election platform; many are created for purely electoral ends around a leader; too many politicians behave like oligarchs whose first concern is the defence of their (chiefly financial) interests. The opposition does not yet constitute a real democratic alternative for want of consistency and substance in its thought and action, and remains tempted by boycott of the parliamentary proceedings and by street protest. Hitherto the ruling majority was sustained by changing or ill-assorted political alliances and did not manage to solidify its programme in the long term.
4. Composition of the new National Assembly
66. The parliamentary election results have led to the formation of a coalition of the three political parties that topped the polls, viz. the Republican Party of Armenia, the Dashnaktsutyun (Armenian Revolutionary Federation) Party and the Orinats Yerkir (Rule of Law) Party holding a total of 70 out of 131 seats. The membership of the government, and the allocation of offices carrying responsibilities in the Assembly and the executive, reflect this alliance.
67. The representatives in the National Assembly are divided among 6 political factions and 1 political group, whose leaders and representatives we met during our visit.
68. The composition of the new Assembly is to some extent a matter for concern. A significant reconstitution occurred with this year’s elections, and many representatives are politically inexperienced.
69. Moreover rumours and allegations are going about concerning a new Assembly with some 30 % of its membership consisting of businessmen, often disreputable and sometimes having mafia connections, who have paid high prices to be eligibly positioned on the party lists (or who have ‘secured’ their election in a constituency as an independent candidate by using dubious means such as vote-buying) and joined the parliament to acquire an immunity that is highly profitable in the present climate of corruption and intrusion of business interests into politics.
70. Lastly, contrary to the wish expressed by the Parliamentary Assembly in Resolution 1304 [10], only 8 women have entered Parliament. Seven are to sit in the new National Assembly, one having meanwhile become Minister of Culture … the only female member of the government.
B. Local self-government: reform at a standstill
71. On acceding to the Organisation, Armenia undertook
“to amend, before the next local elections, the current legislation governing the powers of local authorities so as to give them greater responsibilities and independence, taking into account the recommendations made in this respect by the Congress for Local and Regional Authorities of Europe (CLRAE)” (Opinion 221, para. 13 iii. h.)
72. The ambitious programme of legislative and constitutional reforms presented to us during our visits in 2001 and 2002, expected to lead to simplification of the country’s territorial organisation and to reinforcement of local government powers, has barely progressed since that time. Contrary to the undertaking entered into, the whole body of legislation on local authorities was not amended prior to the local elections.
73. This was noted by the Assembly with regret in Resolution 1304 (2002):
“The Assembly encourages the authorities to speed up reforms in the area of local government, and to improve the recently enacted Law on Local Self-government; it regrets that certain legislation has not been enacted prior to the local elections to be held in October in spite of commitments to that effect”
74. The local elections took place on 20 October 2002. They were monitored by the Congress of Local and Regional Authorities of Europe (CLRAE)[11].
75. The CLRAE discussed a report on the state of local democracy in Armenia during its last session on 25 November 2003, and adopted a Recommendation 140 (2003) on local democracy in Armenia containing detailed recommendations in the matter to the Armenian authorities.
76. It should be pointed out that as the Constitution and the legislation stand, the autonomy of local authorities is seriously restricted by the power of government-appointed district governors. The government can dismiss mayors at the governor’s proposal. The Mayor of Yerevan is appointed and dismissed by the President of the Republic, at the proposal of the Prime Minister. Any reform in this area requires a revision of the Constitution (Articles 105-110).
77. In practice, local authorities vested by law with powers both in their own right and delegated, are having difficulties in exercising them, as they are seriously short of financial resources and staff chiefly in rural areas. The machinery for devolution of powers and concurrent financing has not been devised.
78. Revision of the Constitution therefore remains vital to the establishment of true local self-government in Armenia. Constitutional reforms are awaited in spheres such as local self-government in the capital, procedure for the dismissal of mayors, and the duration of a local electoral mandate. Nonetheless, the constitutional process should not slow down the concomitant adoption of legislation in keeping with Council of Europe standards.
79. The Law on Local Self-Government enacted on 7 May 2002 was far from consistent with the recommendations of the Council of Europe – Venice Commission and CLRAE. It was revised in December 2002 but is still very much open to improvement.
80. The current legislation on the supervision of local authorities, their financing and intermunicipal co-operation can be revised and aligned with the European Charter of Local Self-Government without even awaiting a constitutional revision.
81. Therefore we can only reiterate the recommendations made in our previous report and urge the authorities to speed up work resolutely in these matters:
- speedy revision of the Constitution, with concomitant:
- revision of the law on local self-government
- passage of a law on the status of Yerevan
- passage of a law on the territorial administration of the State
- passage of a law on municipal staff
- passage of a law on administrative oversight of local authorities
on the understanding that the bills will be forwarded for expert scrutiny to the Council of Europe in due course.
IV. RULE OF LAW: CONSTITUTIONAL AND INSTITUTIONAL REFORM FURTHER POSTPONED
82. The 1995 Constitution sets up in Armenia a system of government organised through a strong executive:
- executive power is wielded by the Head of State – the President of the Republic – holding substantial prerogatives;
- it is the President who appoints and dismisses the Prime Minister and the members of the government; he fills all the civil posts;
- there is no countervailing power, whether parliamentary or judicial, in respect of this dominant executive; the President can dissolve the National Assembly, decline to promulgate a law, and ask the Assembly to make a fresh reading, appoints and dismisses the State Prosecutor and the other prosecutors, the members and the presiding judge of the Constitutional Court and judges at every level of jurisdiction, and authorises any judicial or administrative proceedings that may be brought against them;
83. With no political or legal counterbalance, the functioning of institutions could generate side-slips and lead to the exercise of power by an oligarchy. Such failures would not be compatible with the respect of the principles of the rule of law if connected with a backdrop of nepotism and corruption in the state and society.
84. The Council of Europe was therefore expecting constitutional and legislative reforms which are vital to redress of balance of power and overhaul of institutional practices. They have not taken place. The long electoral period was by no means conducive to the introduction of reforms in Armenia, but on the contrary fostered a certain parliamentary inertia.
85. The recent setting up of an ad hoc parliamentary committee on Armenia’s integration with the European institutions could doubtless improve the perception by the Armenian authorities of the obligations and commitments remaining for them to fulfil vis-ŕ-vis the Council of Europe, and of the stages still to be covered for closer approximation to European standards.
A. Revision of the Constitution
86. President Kocharian undertook in 2001 to revise the 1995 Armenian Constitution to align it with the European Convention on Human Rights and the protocols thereto, and to abide by the undertakings entered into with the Council of Europe regarding certain reforms. Despite the promises made to the Council of Europe, the authorities have postponed for over a year the adoption of the draft in this connection, likewise delaying the fulfilment of certain commitments.
87. A scheme of constitutional amendments was produced by the Presidency then adopted by the Armenian National Assembly on 2 April 2003 [12].
88. As had been decided, this draft Constitutional Act was put to the citizens in a referendum held on the same day as the parliamentary elections, 25 May 2003. The draft Constitution could not be adopted unless it gained an absolute majority of votes cast and rallied one-third of the registered voters. It only gained 559 667 votes in favour (552 257 voted against) and did not attain the percentage necessary to be validated (one-third of registered voters, ie approximately 779 000 votes).
89. The international observers stressed the state of unpreparedness of public opinion and regretted the authorities’ deliberate line of not committing themselves to a campaign in support of the constitutional draft. In fact there was no awareness-raising campaign or public presentation of the draft and its content to the electorate. The opposition itself did not campaign either.
90. President Kocharian told us that if he had fully involved himself in the referendum campaign his political opponents would certainly have denounced a plebiscite.
91. The authorities informed us that discussion of a draft for the revision of the Constitution would resume at the start of 2004 and end in the spring of that year 2004 [13] ; the draft would probably not be the same as the one submitted to referendum in May 2003, but would conscientiously incorporate the recommendations of the Council of Europe in respect of the undertakings in abeyance, viz.:
- abolition of capital punishment,
- guarantees in the event of arrest and detention,
- respect for individual rights and freedoms, and the machinery for safeguarding human rights,
- the status of the ombudsman,
- local self-government and the status of Yerevan.
92. President Kocharian informed us that he had little inclination to embark on the drafting of a new Constitution embodying fundamental changes, but somewhat more to incorporate into the present Constitution those changes strictly essential to the fulfilment of Armenia’s undertakings.
93. The revision of the Armenian Constitution has already occupied several months of work and expert studies in the recent past. We are convinced that the Armenian authorities will take account of the recommendations transmitted to them by the Council of Europe two years earlier [14], together with future ones [15]. We hope that this time the reform schedule can meet the deadlines announced to us during our visit.
94. The new legislature which began its proceedings on 8 September 2003 presents a most ambitious legislative programme and has planned the discussion of 116 bills. Where the commitments are concerned, the chairman of the Armenian parliamentary delegation has disclosed an exact legislative calendar to the rapporteurs (see Appendix V).
95. The passage of a number of laws which the commitments entail hinged on the prior revision of the Constitution. The failure of the constitutional revision process at the national referendum held on 25 May 2003 now compels the authorities to take up these bills again and to set the deferred reforms in motion (laws on the ombudsman, local self-government and reform of the Constitutional Court), at least on a transitional basis.
96. Armenia has undertaken
“to adopt, within six months of its accession, the law on the ombudsman” (Opinion 221, para. 13 iii. b.).
In September 2002 the Assembly invited the authorities “to defer the adoption of the law on the ombudsman no longer” (Resolution 1304, para. 10); it was to have been adopted by 25 July 2001.
97. A bill on the Human Rights Defender was drawn up under the former legislature in 2001 and given an expert appraisal by the Venice Commission. Subsequently a new revised bill was approved in December 2002 and appraised by the Council of Europe experts and again by the Venice Commission, which adopted an opinion in March 2003.
98. The bill on the Human Rights Defender was adopted finally on 21 October 2003 by the National Assembly. The law took effect on 1 January 2004. The authorities had initially contemplated not passing the bill until the revision of the Constitution was over, in order to vest the future ombudsman with constitutional status. After this procedure miscarried, the authorities nonetheless decided to give Armenia an ombudsman forthwith and worked out a compromise making it possible to abide by the Constitution pending its revision.
99. The law enacted is along the lines desired by the Parliamentary Assembly and conforms to the principles which it has again recalled of late in Recommendation 1615 (2003) on the institution of Ombudsman [16] - with a single exception, relating precisely to the compromise solution proposed by the authorities.
100. The law in fact provides that, as a transitional arrangement, the President of the Republic not the National Assembly will appoint the first Human Rights Defender, after consulting the parliamentary groups and factions. The provisions of the law concerning the ombudsman’s appointment by the Assembly will therefore not come into force until after the revision of the Constitution [17]. The authorities take the view that the present Constitution vests the President alone with power to appoint the ombudsman and that to prescribe appointment by the National Assembly would be contrary to the Constitution.
101. We disagree. It is indispensable that Armenia’s first ombudsman should enjoy the complete confidence of the citizens. The institution must be an independent one. The procedure and conditions of appointment are the warranty for this. The credibility and visibility of the new institution are at stake here. As we pointed out to the authorities during our visit, mere “consultation” of the parliamentary groups does not strike us as fulfilling the undertaking made, even on a transitional basis. President Kocharian was eager to assure us that he intended quite simply to approve whatever name would be put to him by the political forces in Parliament.
102. It appears essential to us that the law should afford the ombudsman all the guarantees of independence necessary for the discharge of his function, as regards both conditions of appointment and performance of duties, and lay down in particular the principle of his appointment by the National Assembly by a substantial majority (2/3 or 3/5).
103. We do not understand the alleged incompatibility between the provision of the law requiring the Assembly to appoint the ombudsman by a special majority and the present Constitution. Nothing in the Constitution need prevent the Assembly from appointing the ombudsman, provided that the Assembly’s decision to do so is endorsed pro forma by the President in a decree of appointment. The letter of the Constitution, vesting the President with power to “make appointments to civilian positions in cases prescribed by law” (Article 55.5) would thereby be upheld.
104. We therefore request the authorities to amend accordingly the transitional provisions made in the law.
105. We further request the authorities to refrain from any move that would detract from the visibility of the new institution. For instance, the proposed formation within the National Assembly of an ad hoc committee on human rights is liable to confuse the issue, given that there is already a presidential committee on human rights, which in President Kocharian’s opinion is overwhelmed by complaints and, according to the NGOs, has not been very active hitherto; in any case it is expected to be dissolved upon the appointment of the ombudsman.
106. In September 2002, the Assembly invited the authorities “to revise the Administrative Code without delay. It urges them to abolish the provisions concerning administrative detention and to refrain from applying them in the interim. It warns the authorities of the abuses their application leads to, which are seriously at variance with the principles of the Organisation” (Resolution 1304, para. 9)
107. We are still waiting for the authorities to meet our demands and embark on the process of revising the Administrative Code, many of whose provisions are inimical to the standards of the Council of Europe. This is particularly true of the administrative detention procedure (see above, paras. 33 et seq.)[18].
108. During our visit, we therefore again told the authorities – President of the Republic, Prime Minister, Minister of Justice, State Prosecutor – that we could not condone the application of this procedure gravely infringing human rights. We demand that the authorities and judges cease applying this downright disgraceful procedure. It is two years since the authorities signified to us their intention to abolish administrative detention while in the process of revising the Administrative Code. This revision must be effected speedily. Any official indecision in this matter would be unacceptable.
3. Criminal Code, Code of Criminal Procedure, Law on the police
109. In Resolution 1304, the Assembly “urges the authorities to pursue the reform of the judicial system, in full co-operation with the Council of Europe, and in particular:
i. to approve the draft criminal code taking fully into account the recommendations the Council of Europe’s experts will be making to them;
ii. to revise the Code of Criminal Procedure without delay, bringing it into line with the Council of Europe’s standards;
iii. to amend the law on the police, in order to clarify the roles of the different judicial bodies in terms of investigation and arrest, in keeping with the recommendations made by the Council of Europe’s experts”.
110. The Criminal Code was adopted on 18 April 2003 and came into force on 1 August 2003 (see also paragraphs 130 et seq. on the abolition of capital punishment). Some of its provisions on insult and defamation (Articles 135, 136 and 318) present a serious problem of securing freedom of expression (see paragraphs 197 et seq.).
111. The Committee of Soldiers’ Mothers furthermore drew our attention to the fact that the reform of the Criminal Code henceforth denied NGOs and associations their former possibility of assisting the defence of service personnel before the courts.
112. Work on the revision of the Code of Criminal Procedure, in force since 1999, has not yet begun. However recommendations of the Council of Europe experts were sent to the Armenian authorities in 2002.
113. The law on the police, enacted and promulgated in May 2001, despite the criticisms of the Council of Europe experts, came into force on 1 January 2003. The Council of Europe has already requested its revision and expects the Armenian authorities to start work on it as soon as possible.
C. Functioning of institutions
114. The commitment
“to grant access to the Constitutional Court, within two years of accession, also to the government, the Prosecutor General, courts of all levels, and – in specific cases – to individuals”(Opinion 221, para. 14, ii.)
has still not been honoured. The Constitutional Court was to have gained from the constitutional reform a substantial extension of its jurisdiction together with possibilities for referral.
115. We therefore reiterate our attachment to the initial scheme of reform. The President of the Republic, the Government, the local authorities, the courts, the State Prosecutor, the Ombudsman, one-fifth of the members of the National Assembly, and especially ordinary citizens, should be able to petition the Constitutional Court.
116. At the time of its accession Armenia undertook
“to fully implement the reform of the judicial system, in order to guarantee, inter alia:
– the full independence of the judiciary;
– full and immediate access to a defence lawyer in criminal cases (compulsory for minors); if necessary, the costs should be borne by the state” (Opinion 221, para. 13, iv. a.).
117. Despite the large number of laws passed by the previous legislature, the reform of justice is not yet finalised. The Minister of Justice expects that the reforms will be spread over at least two years.
118. The Council of Europe has already carried out an expert appraisal of bills for legislation on the status of judges, the Judicial Council and the judiciary. In March 2003, it also sent its recommendations to the authorities on the appointment and the guarantees of independence of judges.
119. During our visit, the international observers and the NGOs again expressed reservations about the independence of justice. The Minister of Justice told us that the gradual upgrading of judges’ and prosecutors’ salaries was a step in the right direction and helped prevent corruption. He considered it unthinkable to contemplate increasing their powers at present; measures must be introduced beforehand to guarantee judges’ observance of a certain ethical standard and guard against abuse of authority.
120. The failure of the constitutional revision has prevented any further progress to date in fulfilling the commitment “to reform the Judicial Council in order to increase its independence within three years of accession” (Opinion 221, para. 14, iii.).
3. The police
121. At the time of our visit, the Chief of Police (a former Minister of the Interior) told us that he was endeavouring to promote a new policy founded on ethical values to improve the functioning of the police department.
122. However, the NGOs continue to report periodically on the malfunctions of the police and the misconduct of its officers: brutality and ill-treatment during police custody, extortion of money (eg from homosexuals, or daily by the traffic police) remain commonplace.
A. Abolition of the death penalty
123. According to the letter of Opinion 221, Armenia undertook inter alia:
- ”to ratify Protocol No.6 to the European Convention on Human Rights within one year of its accession” (that is on 25 January 2002) (Opinion No. 221, para. 13 i. b.);
- “to adopt, within one year of its accession, the second (specific) part of the Criminal Code, thus abolishing de jure the death penalty” (that is on 25 January 2002) (Opinion 221, para. 13 iii. a.).
124. In Resolution 1304 adopted in September 2002, the Assembly found that these two undertakings had not been honoured and again called on Armenia for ”complete abolition of the death penalty, without any exceptions or restrictions”, and concluded as follows :
”The Assembly expects the Armenian authorities, without delay, to ratify Protocol No. 6 to the European Convention on Human Rights and adopt a criminal code in conformity with the standards and principles of the Organisation. If that does not occur before June 2003, the Assembly may decide to annul the ratified credentials of the Armenian parliamentary delegation to the Council of Europe at the June 2003 part-session of the Parliamentary Assembly, in conformity with Article 12 of Resolution 1115 (1997) and Rule 9 of its Rules of Procedure.”
125. Although certain points require clarification, we can regard this commitment as being at last honoured, more than one and a half years behind schedule:
- Protocol No. 6 to the European Convention on Human Rights concerning the abolition of the death penalty has been ratified ;
- the death penalty has disappeared from the new Criminal Code.
1. Ratification of Protocol No. 6 to the European Convention on Human Rights
126. During our visit in August 2003, the authorities encountered and in particular the Speaker of the National Assembly informed us that the ratification of Protocol No. 6 would take place before the Council of Europe Parliamentary Assembly’s September 2003 part-session.
127. On our account, we firmly pointed out at the time to our various talking-partners that the Parliamentary Assembly had shown quite enough patience in this matter and that Protocol No. 6 had to be ratified by the end of September without exception or restriction of any kind, and must come into force immediately the instruments of ratification were deposited, which was to be done in the very shortest time.
128. The mission by the rapporteurs in August, like the meeting three months earlier of Mrs Durrieu, Chair of the Monitoring Committee and Mr Jaskiernia with President Kocharian on 24 May 2003, have evidently brought about decisive progress on this issue.
129. On 9 September 2003 the Armenian National Assembly authorised the ratification of Protocol No. 6 by 92 votes in favour and one against (there were 131 members present in the National Assembly, the “Justice” Bloc comprising the opposition parties having boycotted the vote in protest[19]). On 29 September 2003 the Minister for Foreign Affairs deposited the instruments of ratification. Protocol No. 6 came into force on 1 October 2003.
130. The authorities have stated their readiness at the present time to examine Protocol No. 13 and their determination to sign and ratify it at brief intervals.
2. The adoption of the new Criminal Code
131. In Resolution 1304 the Assembly
”takes note of the adoption at first reading of the new criminal code. It notes that homosexual relations between consenting adults have been decriminalised. However, it is shocked by the National Assembly’s decision to maintain capital punishment for people who commit certain crimes, in violation of its commitment to abolish the death penalty in the criminal code within the year following its accession. It takes note of the position presented by the Armenian delegation to the Parliamentary Assembly that the criminal code will be finally adopted before the end of 2002.”
132. The Criminal Code was adopted at the second reading in December 2002 and finally on the third and last reading on 18 April 2003. The death penalty was at last abolished de jure.
133. Nevertheless the Armenian Parliament, in conjunction with the adoption of the Criminal Code, passed a law on the implementation of the Criminal Code, allowing capital punishment to be maintained de facto in the criminal law of the land by subterfuge. Section 3 (4) of the law provides that:
”the provisions of the present Criminal Code relating to the death penalty shall not be applicable to persons who, before the Code’s entry into force, have committed a murder with aggravating circumstances, an act of terrorism, or the rape of an underage girl”.
134. We disapprove the strategy. We expressed concern over this during our visit and asked the authorities to dispel all ambiguity by amending the Criminal Code implementation law, concurrently with the ratification of Protocol No. 6, in order to remove from it the provision allowing retention of the death penalty for certain crimes. The authorities gave us to understand that the ratification of Protocol No. 6 would at all events completely remove the statutory foundation from the provisions of the law, and that henceforth the courts would disregard them. We therefore accept this interpretation.
135. Lastly, following an initiative of the parliamentary opposition (“Justice” bloc), the National Assembly unanimously adopted on 5 November amendments to the Criminal Code which aim to exclude from amnesty (i.e. from the possibility of an early release) persons sentenced to life imprisonment for particularly serious crimes (murder with aggravating circumstances, assassination of a public or political figure, terrorism, genocide). These provisions are entirely contrary to Committee of Ministers Recommendation No.2003/22 on conditional release (parole).
3. Commutation of death sentences
136. The new Criminal Code came into force on 1 August 2003. President Kocharian, in keeping with the assurances which he gave us in August 2002, signed a decree the same day commuting the death sentences already passed to prison sentences for life, with 20 years to be served without remission.
137. The Secretary General of the Council of Europe described this gesture as a “positive move” and a “major step forward”.
138. This measure affects 42 persons sentenced to death who are currently in prison. At the time of our visit, 23 of these 42 condemned men went on a hunger strike, refusing to have their sentences commuted and demanding execution rather than rot for the rest of their lives in substandard prisons. One protested his innocence while five others considered that their trials were not conducted fairly and demanded retrial. Another, Ashot Manukyan, got an NGO to pass us a letter written for our perusal, expressing his despair at having to bear confinement for life under dreadful and intolerable conditions of imprisonment.
139. It seems logical to us that these 42 sentenced persons were not to be treated collectively and that there was not to be automatic applicability of life sentences. Depending on the seriousness of the crime that they committed, the sentence already served and their conduct in prison, their files should be separately re-examined, case by case. We did not obtain a clear answer on this point from our contacts. President Kocharian and Mr Torosyan, leader of the Armenian parliamentary delegation, assured us that everything had been as we wished but we are unconvinced and await clarifications from the authorities.
4. Revision of the Constitution
140. Article 17 of the present Constitution provides that ”the death penalty may be prescribed by law for particular capital crimes, as an exceptional punishment”.
141. This article should be deleted. It will be up to the Armenian authorities to provide in the forthcoming draft constitutional amendments for the fundamental guarantee of the right to life, and the abolition of the death penalty in peacetime and wartime alike, as constitutional provisions.
5. Position of the Armenian authorities – Trial of the events of 27 October 1999
142. The undertaking to abolish the death penalty was freely given and accepted by the authorities, including the members of parliament, in the spring of 2000. After lengthy tergiversations, the Armenian authorities have finally honoured this commitment, two and a half years after the country’s accession to the Council of Europe. Considerable time has been lost.
143. Why such a delay? Indisputably, when crucial election dates were drawing near it seemed inconceivable to the authorities and especially to the parliamentarians to back reform of this kind of they were not to fly in the face of public opinion, held to be predominantly anti-abolitionist. The Armenian authorities sought shelter in dilatory tactics and availed themselves of numerous legal quibbles to gain time [20]. In so doing, they risked exposure to international sanction.
144. This question was, and still is, all the more controversial for being directly associated with the events of 27 October 1999 and with the political advantage taken of the affair.
145. To recapitulate, on 27 October 1999 five armed men burst into the Parliament chamber and fired on those present, killing eight public figures [21] and wounding four other persons. This tragedy made a deep impression in people’s minds and on public opinion.
146.vThese events have significant bearing on the question of abolishing the death penalty and long prevented any progress. The Armenian authorities and some parliamentarians had told the rapporteurs during their successive visits to the country that they could not endorse the idea of abolishing the death penalty forthwith, but would be able to declare themselves in favour of ratifying Protocol No. 6 only after the trial of the killers. A section of the parliamentary opposition has long publicly expressed support for the death penalty and moreover told us during our last visit that it would not vote for ratification of Protocol No. 6. Some of its leaders belong to the victims’ families: Stepan Demyrchyan is the son of Karen Demyrchyan, and Aram Sargsyan is the brother of the murdered Prime Minister.
147. The trial opened in February 2001. After a long break due to the ill-health of the presiding judge, the hearings resumed on 28 April 2003. On 2 December 2003 the Court sentenced six defendants to life prison terms and one other to 14 years in prison. The court hearings are punctuated by numerous procedural incidents and developments[22].
148. The victims’ families cast doubt on the impartiality of the proceedings; they accuse the ruling power of meddling in the trial to prevent disclosure of the truth about the persons behind the murders. We discussed the trial with several officials including the Minister of Justice and the State Prosecutor who thought that the politicisation of the case unfortunately precluded rational insight into the proper conduct of the proceedings.
149. Armenia has ratified the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which came into force on 1 October 2002. The Committee for the Prevention of Torture made a first visit to the country from 6 to 17 October 2002. A report was transmitted to the Armenian authorities on 28 April 2003. At the present stage, the CPT’s report and the conclusions and recommendations therein are confidential.
150. We did not make prison visits while on our latest mission.
151. There are an estimated 4 500 prisoners in Armenia. Some 30% have been or will be released following the decree of pardon issued by President Kocharian on 1 August this year.
152. The Minister of Justice informed us that conditions were perceptibly improved though not ideal, notably in terms of infrastructure, dilapidation of premises, water supply and health care. The international observers in fact confirm that since control of detention centres and prisons was transferred to the Ministry of Justice and staff training work was conducted, the running has improved.
153. The welfare of persons on remand and the issue of their effective access to justice is what really seems disturbing; detainees remain imprisoned for many years before they secure a trial, the pre-trial investigation is protracted, and the justice apparatus pays them no heed.
154. According to the NGOs, the situation remains poor and few improvements have been made: some prisons ought to be simply closed down, such as the remand centres at Nubarashen and Vanadzor where the cells are unsanitary and damp and the prisoners are undernourished.
C. Situation in the armed forces and law on alternative service
155. Armenia undertook
“to adopt, within three years of accession, a law on alternative service in compliance with European standards and, in the meantime, to pardon all conscientious objectors sentenced to prison terms or service in disciplinary battalions, allowing them instead to choose, when the law on alternative service has come into force to perform non-armed military service or alternative civilian service” (Opinion 221, para. 13 iv. d.).
156. Over the last three years, the number of young draft resisters is placed at 100 to 150, mainly Jehovah’s Witnesses who have been tried and sentenced to a term of imprisonment. According to the Chief of Staff whom we met during our visit in August 2003, 33 young men who had been called up were imprisoned at the time; 16 others – no more, out of 40 000 called up – had, on enlistment, declared their opposition to military service.
1. The fate of Jehovah’s Witnesses imprisoned for refusal to perform military service
157. At the time of our visit 25 Jehovah’s Witnesses, conscientious objectors, were imprisoned, 11 of them pending trial; 7 others were under judicially supervised house arrest [23]. While conditions of detention for those already convicted and serving their sentences in a “labour colony” do not raise anxiety, the opposite applies to those held pending trial. Moreover, it would appear that under cover of the new Criminal Code’s entry into force, and although the maximum prescribed penalty has been reduced from 3 years to 2, the judges have no hesitation in sentencing young objectors to the severest penalty instead of a mitigated one as in the past.
158. We emphatically recall the undertaking made by the authorities “to pardon all conscientious objectors sentenced to prison terms”, pending the adoption of a law on alternative service which would allow them to choose between doing non-armed military service or alternative civilian service.
159. The authorities told us that they would honour the commitment but made release contingent on the enactment of the alternative service law. We do not endorse this position. According to the commitment undertaken, there should be no more conscientious objectors in prison to date.
160. Nonetheless, to our minds this issue of introducing alternative service goes beyond the fate of the young Jehovah’s Witnesses who are conscientious objectors. It is consistent with European standards that young people who do not wish to bear arms and perform military service for reasons of conscience, whether religious or philosophical, should be able to do civilian service with a non-military organisation.
161. A bill on alternative service was at one time drawn up and discussed by the Assembly Defence Committee of the outgoing legislature, in conjunction with the Defence Ministry. We clearly pointed out at that time, during a visit in August 2002, that the bill was not in keeping with the commitment accepted. However the new legislature salvaged this text as a basis for discussion, without major changes. It has been disclosed to some NGOs including the Committee of Soldiers’ Mothers.
162. While on our visit we heard from the Speaker of the National Assembly that the bill was due to be tabled in the Assembly in the autumn for adoption by December 2003. It was indeed adopted at the first reading on 8 October 2003 with a content totally at odds with the commitment made on which the rapporteurs strongly reacted.
163. The law on alternative service was finally adopted on 18 December 2003. It will enter into force as from 1 July 2004.
164. In their final form, its provisions give satisfaction to the rapporteurs on the whole, taking account of the demands of the Parliamentary Assembly and the expert study made by the Council of Europe. The commitment undertook by Armenia is to introduce alternative civilian service, not only unarmed military service. Exercise of the right of conscientious objection to military service has been a constant concern of the Council of Europe for more than thirty years. The Armenian authorities must conform to the decisions of the Parliamentary Assembly, which stipulates genuine alternative service, of a purely civilian type and neither deterrent nor punitive [24].
165. The law institutes a double alternative service, either a strictly civilian service or a military alternative service (ie which affords conscripts the possibility of not bearing arms and of being assigned to civilian duties in the armed forces).
166. In the initial bill this choice was restricted solely to those conscripts belonging to a religious group and was not open to all conscripts asserting a clause of conscience, moral or philosophical principles. Moreover, the possibility of “alternative” service in the army was only offered to “members of an officially registered religious organisation”, thus ruling out young Jehovah’s Witnesses, whose organisation is still not registered. These provisions are no longer part of the adopted law. The law could now resolve the issue of conscientious objection for Jehovah’s Witnesses. We recall that the Jehovah’s Witnesses in Armenia declare their readiness to serve the State through civilian service (unlike Jehovah’s Witnesses in some Western countries) but refuse any service whatsoever in the armed forces.
167. However, alternative service must not constitute a punishment or sanction, or involve harsher conditions than normal military service – but the law fixes a term of 42 months (3 years and a half) for civilian alternative service, as against 36 for military alternative service and 24 for normal military service. Young people having performed alternative service are later barred from recruitment to specific posts (security forces and judicial service).
168. Lastly, the bill does not address the question of what happens to young men deserving outright discharge for health reasons, who apparently receive highly differentiated treatment in each case. The Committee of Soldiers’ Mothers told us that it was awaiting an improvement in the situation of the young conscripts concerned, and supported the idea of setting up a truly independent medical review board.
169. The Army Chief of Staff confirmed that pending the final adoption of the law in question, the provisional procedure established almost two years previously by internal instruction of the Minister of Defence – allowing conscientious objectors to be assigned to civilian duties within the armed forces – was still operating. Further, there was a certain type of alternative service with conscripts assigned to strictly civilian duties (eg teaching in frontier zones).
170. Those with whom we spoke, referring to the regional situation, the lack of a final settlement to the conflict in Nagorno-Karabakh and tension at the borders with neighbouring countries, felt that national security needs were such that it was not possible to put an end to conscription or to introduce a non-military form of national service. The ceasefire violations which occurred in July and again during our visit do not militate in favour of such a reform. The Army Chief of Staff nevertheless concurs with us that, given the finance, he would give clear preference to forming a completely professional army.
171. We agree that the arguments raised by the authorities do not lack pertinence. However we expect the authorities to progress rapidly regarding the question of conscientious objection and of introducing alternative civilian service, even if it is still very difficult for such a reform to gain acceptance. We therefore welcome the adoption of the law on alternative service, even though some provisions need to be further amended before its entry into force.
3. Situation of conscripts in the army
172. According to the assertions of the civil and military authorities we met, the problems in this area are identified and a number of remedial measures have been taken. It should moreover be noted that ten or more NGOs are authorised to visit military units and meet conscripts. The committees of soldiers’ mothers periodically meet with the authorities to take stock of the situation together.
173. The NGOs continue to mention cases of bullying, brutality and ill-treatment inflicted on young conscripts, in some cases with resultant bodily harm or death of the victim. The situation of conscripts, together with living conditions in the army, have improved significantly. We repeated to the authorities that these “traditions” of bullying and hazing were inadmissible.
174. The Army Chief of Staff told us that since 1994 the death toll in the army was a tenth of the earlier figure. Cases of dedovshina had also decreased appreciably, although there are still about ten per year. In a case quoted as an example by the Committee of Soldiers’ Mothers in which a conscript who had committed a theft was beaten to death, the Army Chief of Staff hastened to point out that the senior officer responsible had been suspended then tried and sentenced to 7 years in prison.
175. An extremely common feature in the army is corruption of non-commissioned officers enabling conscripts to “purchase” for instance a spell of leave or a civilian posting in a regiment.
176. The Army Chief of Staff gave us the opportunity to visit the military camp of our choice in order to interview the conscripts directly about their conditions of service. We were accordingly taken at our request to the Nubarashen camp on the outskirts of Yerevan. Here we should thank the military authorities for having consented without demur to throw open to us the doors of a regiment and give some of their time to answering our questions in a very frank and down-to-earth manner.
177. Armenia undertook upon accession
“to ensure that all churches or religious communities, in particular those referred to as “non-traditional”, may practise their religion without discrimination” (Opinion 221, para. 13 iv. b.).
178. In September 2002 the Assembly “urge[d] the authorities to register the Jehovah’s Witnesses as a religious organisation” (Resolution 1304, para. 15).
179. Under the law of 1991 on freedom of conscience and religious associations, religious organisations must be officially registered. To date, 53 religious organisations are officially registered in Armenia. The Jehovah’s Witnesses remains the only unregistered religious organisation at present in Armenia.
180. The Ministry of Justice is the body responsible for registration, the department of economic and social affaires answerable to the Prime Minister being in charge of examining the file and forwarding an opinion to the Minister.
181. During our last visit we met the representatives of the Jehovah’s Witnesses and conferred about progress on this issue with the Prime Minister, the Minister of Justice and the officials of the department of economic and social affairs answerable to the Prime Minister.
182. From 1995 to the present time, the Jehovah’s Witnesses claim to have lodged 10 applications for registration, all in vain. They were turned down twice in November 1995 then again in May 2000. Their latest attempt was on 18 August this year. The Jehovah’s Witnesses complain of the authorities’ passion for tape where they are concerned, and of the harassment which they undergo by way of demands for further particulars and endless lists of questions.
183. The authorities appeared to us still resolved to maintain their stance. They consider the file of the Jehovah’s Witnesses incomplete and not in compliance with the requirements of the law, and call for alterations to the articles of association. Clearly, absence of registration does not prevent the Jehovah’s Witnesses from worshipping but we do not understand the authorities’ persistence in blocking the application for all these years.
184. The question of the representativeness of religious organisations appears to us problematic. During our last visit we asked to meet the body representing the various religious communities of Armenia. That was not possible, there no longer being any such body. The State Committee for religious affairs was dissolved in March 2002, and the Council for religious affairs attached to the Prime Minister’s department, created in August 2002 to replace it, was also dissolved subsequently. The Prime Minister told us, however, that there was an advisory committee to the Prime Minister (formed by members of the government, representatives of certain religious organisations, and intellectuals). We consider it indispensable that the authorities set up a genuine independent body in which the representatives of all religions active in Armenia would have seats and which would act as the government’s single negotiating partner.
185. The creation of a body like this could counterbalance to some extent the undue hold of the Armenian Apostolic Church on society and state. The church’s historical role as the embodiment of the nation’s continuity, and its influence on national stability, are irrefutable. However, specific “cases” brought to our notice prompt us to ask the authorities to direct their efforts more towards respect for the neutrality and secularity of the State.
186. This applies to the government’s decision in 2002 to introduce compulsory teaching of the history of the Armenian Apostolic Church into schools.
187. The NGOs mentioned the existence of an order by the Minister of the Interior (‘order 551 A’) of December 2002 which leads to serious discrimination and infringement of freedom of conscience. The order expresses alarm over the penetration of the Ministry by “modern religious movements” and recalls that membership of the Armenian Apostolic Church is alone compatible with the status of a police officer employed by the Ministry. It ”orders the identification of staff belonging to these religious organisations, the commencement of educational work to make them voluntarily renounce their membership of these organisations, and the subsequent monitoring of their conduct”, and, if unsuccessful, “an enquiry in preparation for their dismissal”. This ministerial order is still in force, according to the NGOs, in spite of denials by the authorities we met [25].
188. It was stated in our previous report that there was no real problem over freedom of the press and the media in Armenia. Press organs are many, television channels too. The NGOs acknowledge that no direct censorship is applied to the press [26].
189. Conversely, the position of television and broadcasting appears to us more worthy of criticism and we are not convinced that plurality of opinion is upheld in the electronic media.
1. Legislation concerning the media
190. Armenia recently adopted three fundamental laws in this field: a law on the press and the media, a law on freedom of information and a law amending the law on radio and television broadcasting.
191. A 1991 law on the press and the mass media had regulated media activity for 10 years. Upon acceding, Armenia undertook
“to adopt, within one year of its accession, a new law on the media” (Opinion 221, para. 13 iii. c.).
192. A draft was produced in 2002, given an expert appraisal by the Council of Europe and the OSCE and reworked several times by the authorities, but not adopted by the former legislature. It had raised an outcry from a section of the press, which accused the authorities of seeking to restrict freedom of the press (the draft in fact specified the obligation for journalists to disclose their information sources when so requested by a court, and the obligation for press organs to indicate their sources of finance).
193. A new bill on the media has then been submitted for discussion in the National Assembly. It was based on a text originating from the representatives of the mass media, the Yerevan Press Club and Internews. This move is most encouraging.
194. On 12 December 2003 the National Assembly adopted this media bill at its final reading. The Council of Europe promptly forwarded its comments.
195. A bill on freedom of information has been considered by the National Assembly concurrently. It has been adopted at the 2nd reading on 23 September and at final reading in December 2003.
196. Lastly, the law on radio and television broadcasting adopted in 2000 and revised in 2001 has again been revised. It has never satisfied the Council of Europe, as the experts’ recommendations have not been taken into account, particularly as regards the composition of the two bodies created - the Public Television and Radio Council and the National Television and Radio Commission, responsible for regulating public and private broadcasting respectively –whose members are all appointed by the President of the Republic.
197. On 4 December 2003, the National Assembly adopted in final reading the bill to amend the law on radio and television broadcasting. The Council of Europe had already conveyed to the authorities its comments. To date we do not know to what extent all these comments have or have not been fully taken into account by the lawmakers, especially as regards the composition of the regulating bodies and the motivation of their decisions.
2. Freedom of the media and defamation
198. The reform of the Criminal Code caused intense controversy over respect for freedom of expression. Under the terms of the new Criminal Code, defamation is liable to a penalty of up to three years in prison (Articles 135 and 136); Article 318 prescribes a penalty of up to two years in prison for insulting a representative of authority in the mass media, a publication or a speech.
199. It is of course permissible for Armenia, like other European countries, to adopt criminal legislation on defamation. On the other hand, to prescribe prison sentences for such offences is completely disproportionate. We request the authorities to amend the Criminal Code in this respect.
200. But the question of award of broadcasting licences most of all has been making news for a year and a half in Armenia, a revealing fact.
201. To recapitulate, in April 2002 the television channel A1+, one of the main private channels, very popular in Armenia, ceased transmission after the failure of its bid in the competitive tendering for the allocation of the frequency it was using until then and the withdrawal of its broadcasting licence. It is the same story for the channel Noyan Tapan, which had to cease transmission in September 2001 and also failed to secure the award of a licence in the competitive tendering of April 2002.
202. The authorities had given the rapporteurs an undertaking to organise a fresh invitation of tenders for 25 October 2002. Contrary to the assurances given, it did not take place on the appointed date but 8 months later (ie after the elections).
203. This affair elicited a very strong reaction from public opinion and the printed press, and sparked keen controversy fuelled by the NGOs and part of the political opposition. They considered that the decision gravely compromised media pluralism and free access to information in Armenia. Television is indeed the main source of information for Armenians. To put a television channel off the air less than a year before the elections was tantamount to manipulating the media coverage of the campaign. Indeed the assessment made by the international election monitoring mission notes that public television did not display impartiality in that it mainly covered the activities of the outgoing President in its news broadcasts.
204. Meltex (A1+) regularly made its bid in every subsequent call for tenders, but on each occasion the national radio and television broadcasting commission decided not to award a broadcasting licence to A 1+:
- call for tenders for allocation of a frequency examined on 7 June; negative decision on 11 June 2003;
- call for tenders for allocation of five frequencies (A1 + tendered for 3 frequencies) examined on 14 July; negative decision on 18 July 2003 (Noyan Tapan which was applying for another frequency was also turned down).
205. This further negative decision caused an outcry in Armenia’s media. Several parliamentarians including majority members such as A. Rustamyan and T. Torosyan expressed their amazement and perplexity.
206. The international organisations – OSCE, Freimut Duve the OSCE Representative for freedom of the media, Council of Europe – expressed their disappointment and deep anxiety concerning the pluralist character of the medias in Armenia. The international observers in fact consider the tender made by A1+ to have been the best in terms of programming and professional experience.
207. In our appraisal of the issue, we are convinced that the national radio and television commission did not in principle infringe the letter of the law and that the rules were complied with on paper. The fact remains that given the silence or imprecision of the statutes, the commission assumed real discretionary power.
208. We spoke with Mr Amalyan, Chairman of the commission, who gave detailed justifications for the decisions taken. Mr Amalyan denies acting with political motives and categorically refutes the allegations of the opposition. Although the law on broadcasting does not compel the commission to substantiate its decision, its rejection of the tender from A1+ can be explained by technical and financial deficiencies in the application. Mr Amalyan observes that he conscientiously acted in accordance with the requirements laid down by the law on broadcasting.
209. During our visit we also heard the observations of the A1+ president, Mr Movsisyan, and of Mr Harutyunyan, president of Noyan Tapan. Both are convinced that the reasons are political. Mr Movsisyan considers the provisions of the law to have been infringed at the time of the call for tenders in April 2002 ; he absolutely contests the reasons given for the latest decision in July 2003. The case was brought before the courts and, having exhausted domestic remedies, Meltex has now applied to the European Court of Human Rights.
210. At the conclusion of our mission, we express serious doubts about the pluralism of the electronic media in Armenia. It seems obvious to us that there is a real problem of freedom to inform the public via audiovisual media. The change in the membership and mode of appointment of the national radio and television commission – whose 9 members are appointed by the President of the Republic – could possibly bring about an improvement. It would also be desirable for the commission’s decisions to be fully reasoned. But the unhealthy economic context in which commercial rivalry knows virtually no rules or bounds is unfavourable for establishing a pluralistic audiovisual landscape of good quality in Armenia.
211. Epilogue: Mr Amalyan had informed us that many frequencies were still to be put out to tender. And indeed on 13 October and again on 29 December 2003 the national radio and television commission refused the bid of A1 + for frequencies in another calls for tenders.
212. Journalists have been assaulted. On 24 October 2002, journalist Mark Grigorian was severely injured by splinters from a grenade thrown at him in the very centre of Yerevan. On 27 September 2003 the editor-in-chief and the publication manager of the newspaper Or (‘The Day’) were violently assaulted on the street in Yerevan by a group wearing masks. The first victim had been investigating the affair of October 1999; the newspaper Or was looking into corruption scandals. We ask the authorities to elucidate these cases fully and to initiate a speedy, transparent inquiry.
5. Case of the murder of Tigran Naghdalian
213. On 28 December 2002 Tigran Naghdalian, Chairman of the public radio and television council, was murdered. The murder made feelings run high at the time in the media and public opinion, as the case was apparently linked with the events of October 1999. Tigran Naghadalian was indeed to appear as a witness in the related proceedings. Speculation is rife and the case has taken a completely political turn.
214. In March 2003 the authorities arrested Armen Sargsyan, a businessman and brother of former Prime Minister Aram Sargsyan, leader of the opposition party Hanrapetutiun (Republic) and of Vazken Sargsyan, the Prime Minister killed in the attack on the Armenian Parliament on 27 October 1999. Aram Sargsyan protests his innocence and denies having been the instigator and organiser of the crime. The opposition denounces the political capital made out of this case, and the grave irregularities in the conduct both of the pre-trial investigation and of the actual trial. The trial of the 13 people charged in the case opened on 29 July 2003 after several adjournments. The proceedings coincided with those concerning the events of October 1999. On 18 November 2003, the Court has sentenced Armen Sargsyan to 15 years in prison. The appeal trial is currently in progress.
F. Rights of national minorities
215. It should be recalled that minorities represent not more than 3 % of Armenia’s total population [27].
216. During our last visit, we conferred with the representatives of certain minority groups who left us with an impression that there was great confusion in the organisation of representation for some minorities and of dialogue with the authorities, and that inter-community tensions existed between groups (Yezidis, Russians and Assyrians). The representatives of the Yezidi community chiefly complain of their very difficult and poverty-stricken living conditions. The process of land privatisation has caused a situation of utter destitution for their predominantly pastoral community; in exchange for good land they received only wasteland or unworkable land in mountain areas.
217. Another fundamental problem concerns the protection of minority languages. The authorities told us that funds had been released for the publication of books in minority languages (Assyrian and Yezidi). The Yezidi deny ever having received these books and, which is worse, the minorities are incensed by a recent order of the new government requiring the entrance examinations for the Armenian universities to be conducted solely in Armenian from this year onwards, and no longer in a choice of Armenian or Russian.
218. A minorities co-ordination council was instituted in March 2000. It has eleven members - one representative for each of the 11 national minorities, chosen by them from their own community – and is supervised by an adviser to the President of the Republic. Some representatives of minorities criticise the council whose remit and activities are limited and which does not secure equitable and useful representation of the minorities and the various groupings or associations that represent them.
219. Clearly, the competitiveness among the various associations representing specific minorities – Russian, Yezidi, Assyrian – means that their representation is not properly ensured in the council. President Kocharian takes the view that it does not rest with the State to arrange the representation of divided communities.
220. The authorities contemplate disbanding the council and setting up an Agency for Minorities. The Prime Minister told us that he had created a national minorities department in the government to develop cultural and educational activities.
221. Homosexual relations between consenting adults have been decriminalised with the adoption of the new Criminal Code, in accordance with the commitment made (Opinion 221 para. 13 iii. a.).
222. We did not hear of any prosecution of homosexuals. It would nevertheless appear that they are still victims of racketeering by members of the law enforcement agencies eager to supplement their monthly income.
223. It is also plain that certain homophobe animus persists among the population in Armenia and that in Armenia homosexuals are still a long way from being able to organise community activities in freedom. It is not uncommon moreover for some members of parliament to make homophobe statements in public and to speak in favour of reintroducing the criminal definition of homosexual relations into the Criminal Code.
224. Lastly, note that Armenia has its obligations in certain specific fields especially monitored by the specialised bodies of the Council of Europe, in particular the Advisory Committee of the Framework Convention for the Protection of National Minorities, to which Armenia has been party since 1998, and the European Commission against Racism and Intolerance [28].
VI. THE ConfliCt IN NaGORNO-Karabakh
225. Upon accession, Armenia undertook:
“a. to pursue efforts to settle this conflict by peaceful means only;
b. to use its considerable influence over the Armenians in Nagorno-Karabakh to foster a solution to the conflict;
c. to settle international and domestic disputes by peaceful means and according to the principles of international law (an obligation incumbent on all Council of Europe member states), resolutely rejecting any threatened use of force against its neighbours;” (Opinion 221, para. 13 ii.).
226. We distinctly sensed a certain agitation in our informants concerning this question. The fresh outbreak of border clashes which claimed about ten lives late in July, is partly responsible for this. On 19 August while we were in Armenia for our visit, exchanges of fire occurred along the north-eastern border of Armenia (vicinity of Tavouch in Armenia and Gazakh in Azerbaijan … situated 150 km far from Nagorno-Karabakh) without the OSCE mission, which called these incidents a grave violation of the ceasefire, being able to distinguish which party was to blame.
227. Where the settlement of the conflict is concerned, the presidential elections in Azerbaijan have made the Armenian authorities take a wait-and-see attitude. They expect the next Azeri President to carry on the process of negotiation from where it left off, and to honour the undertakings already accepted by the outgoing President. President Kocharian and the Foreign Affairs Minister point out in this connection that the negotiations conducted at Key West (Florida) in April 2001 ended in fundamental advances.
228. It must be recalled that the Political Affairs Committee has been seized for a report on the Conflict dealt with by the Minsk Conference of the OSCE between Armenia and Azerbaijan.Terry Davis, rapporteur of the Committee, undertook a first visit to Armenia and Azerbaijan in April 2003. A visit to Nagorno-Karabakh initially scheduled in July had to be postponed at a later date. The Armenian authorities we met one month later during our visit repeatedly told us that they had met all the requests made to them in connection with arrangements for this visit, and remain willing to fully honour the commitments entered into vis-ŕ-vis the Council of Europe in this regard.
229. Initially, according to the HCR, Armenia took in some 270 000 refugees of Armenian origin from Azerbaijan. Efforts have been made, under excellent co-operation arrangements with the national authorities, to foster their integration into Armenian society, particularly by acquisition of citizenship and conferment of specific economic and social rights.
230. During our visit, the representatives of the international organisations expressed anxiety over the increase in cases of forcible removal of refugees from the dwellings made available to them on arrival in Armenia 10 or 15 years ago (“communal centres”, temporary accommodation centres, hotels, administrative buildings, a sanatorium, etc). They condemn this symptom of Armenia’s evolution towards rampant capitalism. The new owners who took advantage of the privatisation trend to purchase these buildings have in some cases decided to evict their occupants.
231. Certain refugees have appealed to the courts; three applicants have so far had their cases dismissed and other cases are proceeding. The international observers think that the courts have favoured a dubious interpretation of the Armenian Civil Code and blatantly eschewed the application of international treaty law although it binds Armenia (International Convention for the Protection of Refugees). The rights of the refugees are flouted as a result.
232. This situation cannot be allowed to worsen, and equitable solutions must be found. Although these cases primarily concern the conduct of private individuals, it behoves the authorities to have the evicted refugees re-housed under conditions equivalent at least to what they enjoyed previously. It is also up to the authorities to issue the appropriate legislation and regulations for compelling the new landlords to re-house those evicted or to compensate them by paying just financial redress at property market value.
233. President Kocharian told us he was mindful of this problem and wanted to allocate 4 000-5 000 dwellings. But it should be remembered that those refugees who have acquired Armenian citizenship can freely purchase a real property which has been privatised. This is not possible for refugees, who continue to draw state financial assistance which would be stopped if they became Armenian citizens.
234. Armenia is a country still in political and economic transition. It has been through tragic events in the recent past. We quite understand that a country which has known centuries of absolutism and 70 years of communism needs time before it can attain the same degree of democratic standards as other Council of Europe member countries which have taken a century to do so. The political culture of a country which has been independent for only 12 years does not necessarily exhibit the same maturity.
235. Furthermore, in contrast to its neighbours, Armenia benefits from an undeniable openness to the West – Europe or America – thanks to the diaspora.
236. During the year 2003 Armenia has experienced a period fraught with electoral activity, conducive to legislative inertia and maintenance of the status quo in current reforms. Since September 2003, there have been efforts which unmistakably signify a real political resolve to start the country moving forward again towards compliance with its obligations and commitments.
237. We received positive indications from the authorities during our last visit; these must nevertheless be reflected in tangible progress. The abolition of capital punishment and the ratification, after two years of vacillation, of Protocol No. 6 to the European Convention on Human Rights is one such advance, a heartening and emblematic first step that must not remain isolated.
238. The pace of legislative reform, which has lagged strikingly for two years, seems to be quickening once again. In several areas Armenia had not adopted the reforms desired by the Council of Europe. The Armenian authorities had repeatedly procrastinated over these indispensable reforms, viz. abolition of the death penalty, adoption of the Criminal Code, revision of the Constitution, law on the media, law on local self-government, etc. As befits an election year, the Armenia National Assembly has displayed a clear wait-and-see stance and chilly attitude. Other issues – arrests and convictions of demonstrators during the elections; A1+ case – leave us with very subdued and negative sentiments.
239. The rapporteurs therefore awaited substantial progress regarding a number of commitments and expect the authorities to take a more responsible line as to the undertakings accepted. It is indispensable that the Armenian authorities should duly take account of the Parliamentary Assembly’s position concerning specific legislation recently adopted, viz. law on the Ombudsman and law on alternative civilian service.
240. During our visit we received firm assurances from the highest Armenian authorities as to the fulfilment of the outstanding undertakings. We now expect these to be honoured strictly according to the schedule announced to us at the time. We also expect the authorities not to confine themselves to purely formal compliance with the commitments – by passing laws – but to ensure their actual fulfilment.
241. Over and above the commitments as such, it is Armenia’s democratic process that has been gravely vitiated by the wholesale frauds and irregularities which occurred during the elections. This greatly marred the image of Armenia abroad.
242. At all events, the Monitoring Committee could not envisage closing the current monitoring procedure before the next parliamentary and presidential elections are held in the country. Armenia must prove itself capable of running free and fair elections in line with internationally accepted standards.