1. Introduction
1. The political crisis that ensued in Armenia after
the Presidential election, on 19 February 2008, culminating in the
tragic events of 1 and 2 March 2009, has been closely followed by
the Parliamentary Assembly and has dominated the monitoring procedure
with respect to Armenia in the last 15 months. In
Resolution 1609 (2008), adopted on 17 April 2008, the Assembly set out four
concrete requirements to resolve the political crisis. The Armenian
authorities were asked to:
- revoke,
in line with the recommendations of the European Commission for
Democracy through Law of the Council of Europe (Venice Commission),
the amendments made, on 17 March 2008, to the Law on Conducting
Meetings, Assemblies, Rallies and Demonstrations;
- initiate immediately an independent, transparent and credible
inquiry into the events of 1 March 2008 and the circumstances that
led to them;
- release all persons detained on seemingly artificial and
politically motivated charges who did not personally commit any
violent acts or serious offences;
- start an open and serious dialogue between all political
forces in Armenia on the reforms demanded by the Assembly in paragraph
8 of Resolution 1609
(2008) to the political system, electoral process, freedom
and pluralism of the media, freedom of assembly, independence of
the judiciary and police behaviour.
2. On 25 June 2008, the Assembly adopted
Resolution 1620 (2008) on the implementation by Armenia of Assembly
Resolution 1609 (2008). In this resolution, the Assembly considered that, despite
the political will expressed by the authorities to address the demands
expressed in
Resolution
1609 (2008), progress was insufficient to meet the requirements
outlined in this resolution. The Assembly therefore resolved to
consider the possibility of suspending the voting rights of the
Armenian delegation to the Assembly at its January 2009 part-session
if the requirements of
Resolution
1609 (2008), as well as those outlined in
Resolution 1620 (2008), had not been met by then.
3. Without detriment to the other requirements set out by the
Assembly, our work has focused on two demands we consider to be
the priorities in order to resolve the political crisis: the establishment
of an independent, transparent and credible inquiry into the events
of 1 and 2 March 2008 and the circumstances that led to them, as
well as the release of all persons deprived of their liberty on
seemingly artificial and politically motivated charges in relation
to those events.
4. Taking into account the political controversy around the events
on 1 and 2 March, and the vastly diverging versions of them, the
independent, transparent and credible inquiry is crucial to establish
the truth on what happened on 1 and 2 March 2008, and the circumstances
that led to them. This truth is essential for the process of reconciliation
between the different political forces in the country. In addition,
only when the truth has been established will the relevant authorities
and political forces be able adequately to address the underlying
causes, with a view to ensuring that such events will not be repeated
in the future.
5. Furthermore, as stated in our earlier reports
and endorsed by the Assembly
in
Resolution 1620 (2008), the continued detention of opposition supporters in
relation to the events of 1 and 2 March 2008 is a point of contention
that continues to strain the relations between the authorities and
the opposition and undermines the possibility for a meaningful dialogue
on the reforms demanded by the Assembly and, ultimately, the normalisation
of political life in Armenia. Moreover, as stated by the Assembly
in
Resolution 1643 (2009), the nature of the charges against the opposition supporters,
as well as questions with regard to the legal proceedings against
them, raise the possibility that a significant number of persons
may have been charged and imprisoned on politically motivated grounds,
which would have serious implications if left unaddressed.
6. On 27 January 2009, the Assembly adopted Resolution 1643 (2009)
on the “implementation by Armenia of Assembly
Resolutions 1609 (2008) and
1620
(2008)”. In this Resolution, the Assembly declared that it remained
dissatisfied with, and seriously concerned by, the situation of
persons deprived of their liberty in relation to the events of 1
and 2 March 2008. However, it considered that positive steps taken
by the authorities towards the establishment of an independent,
transparent and credible inquiry, a number of pardons granted by
the President of Armenia, as well as the initiative of the Speaker
of the National Assembly to revise the problematic Articles 225
and 300 of the Criminal Code, were an indication of the readiness
of the Armenian authorities to address the demands of the Assembly
contained in
Resolutions
1609 (2008) and
1620
(2008). It therefore decided, at that stage, not to suspend
the voting rights of the members of the Armenian delegation to the
Parliamentary Assembly, and invited the Monitoring Committee of
the Assembly to examine, on an ongoing basis, the progress achieved
by the Armenian authorities with regard to the implementation of
the relevant Assembly resolutions and to propose any further action
to be taken by the Assembly as required by the situation.
7. The Monitoring Committee discussed the developments in Armenia
with regard to the implementation of the relevant Assembly resolutions
at its meeting in Valencia, on 30 and 31 March 2009, and, subsequently,
at its meeting in Strasbourg from 27 to 29 April 2009. On both occasions,
we welcomed the changes made to the problematic Articles 225 and
300 of the Criminal Code of Armenia, which, in the opinion of the
Venice Commission, are considered a clear improvement of the law
as they considerably reduce the scope for over-broad and abusive
interpretation. However, on those occasions, we also stressed that,
ultimately, it would be the impact of these changes on the release
of persons deprived of their liberty in relation to the events of
1 and 2 March 2008 that would count for the Assembly when assessing
the compliance by the Armenian authorities with its demands expressed
in
Resolutions 1609 (2008),
1620 (2008) and
1643
(2009). Following its discussions on recent developments in
Armenia, the Monitoring Committee, at its meeting in Strasbourg
from 27 to 29 April 2009, decided to ask the Bureau of the Assembly
to include an item on the functioning of democratic institutions
in Armenia on its agenda for the June part-session of the Assembly.
8. This report aims at taking stock of recent developments with
regard to the implementation by the Armenian authorities of the
demands made by the Assembly to resolve the political crisis that
ensued after the Presidential election in 2008. Our approach over
the last 15 months has been guided by our conviction that maintaining
an open and constructive dialogue with the Armenian authorities,
and especially its parliament, would be the best manner to ensure
that the changes and reforms that were requested by the Assembly,
in the best interest of Armenia itself, would be implemented. At
the same time, we have always made it clear that we would not hesitate
to call for sanctions if this dialogue was to fail and if it was
clear that the authorities lacked the necessary political will to
comply with the demands of the Assembly.
9. In our assessment, this approach has been generally successful.
As a result of our openness for dialogue, as well as the efforts
by other parts of the Council of Europe, most notably the Commissioner
for Human Rights and the Venice Commission – with whom we have worked
together closely in this process - progress has been made and initiatives
have been, and are being, taken by the authorities to comply with
the Assembly’s demands. Progress on these issues has at times been
frustratingly slow, and we regret that, on occasions, the authorities
seemed to be willing to move only under pressure from the Assembly
and threats of sanctions.
10. But progress has been made over the last 15 months, culminating
in the adoption by the National Assembly, on 19 June 2009, of a
declaration of general amnesty which was submitted by the President
of Armenia to the National Assembly on 16 June 2009. As a result,
most, albeit not all, persons deprived of their liberty in relation
to the events of 1 and 2 March 2008 will be released. While the
release of these persons is not the end of the process to resolve
the political crisis that ensued after the Presidential election
in February 2008, and further actions are still necessary in that
respect, the authorities, by adopting the declaration of the amnesty,
have not only complied with a crucial demand of the Assembly, but,
most importantly, turned to a new chapter in the normalisation of
political life in Armenia.
11. Other important internal developments have taken place during
the last three months that have changed the political landscape
in Armenia.
12. On 15 March 2009, the Armenian National Congress (HAK), the
coalition of opposition parties supporting Mr Levon Ter-Petrossian,
announced that it would participate in the elections for the Yerevan
City Council that would take place on 31 May 2009, and nominated
its leader, Mr Levon Ter-Petrossian, as its candidate for Mayor
of Yerevan. In addition, the members of the ruling coalition decided
to participate as individual parties in the mayoral elections.
13. According to the Law on the Local Administration of Yerevan,
which came into effect in January 2009, following the Constitutional
changes of 2005, the Mayor of Yerevan is elected via an indirect
election system. The Municipal Council is elected by proportional
vote and the candidates heading the list of each party are also the
candidates of that party for the post of mayor of Yerevan. The mayor
is then elected by the newly elected Municipal Council. It should
be noted that Yerevan houses more than 40% of the population of
Armenia and is responsible for more than half of the country’s economic
output. The elections for the Mayor of Yerevan have therefore an
important national dimension.
14. In our statement of 5 May 2009, we welcomed the candidature
of Mr Ter-Petrossian as a clear signal by the Armenian National
Congress that it wants to overcome the political crisis and play
its role as a political force in the democratic institutions of
the country. At the same time, we called upon the authorities and
all political stakeholders to ensure that these elections would
be held in full compliance with the democratic standards of the
Council of Europe. For the Council of Europe, these elections were
observed by the Congress of Local and Regional Authorities of Europe.
The opposition parties alleged that the elections to the Yerevan
City Council, on 31 May 2009, were marred by widespread fraud and
violations. In their statement issued the day after the elections,
the observation mission of the Congress declared that “[their] satisfaction
in seeing the citizens electing their city council has been tempered
by deficiencies in the conduct of the vote”. The authorities conceded
that irregularities took place, but that they were localised and
did not affect the overall outcome of the election. The Prosecutor
General has brought charges against a number of persons for electoral
fraud committed during these elections.
15. In a separate development, the Armenian Revolutionary Federation
(Dashnaktsutyun) announced that it was leaving the governing coalition
as a result of its disagreement with the signing by Armenia and
Turkey of a roadmap to normalise their relationship. This increased
the number of parties belonging to, and generally strengthened the
opposition in the National Assembly.
16. From 15 to 18 June 2009, in the week before the June part-session
of the Assembly, we made an additional visit to Armenia to asses
the progress made by the Armenian authorities in complying with
the demands of the Assembly. During our visit, we met, inter alia,
the President of Armenia, the Chairman of the National Assembly,
the Minister of Foreign Affairs, the Prosecutor General, the Human
Rights Defender of Armenia, the Chairman of the Ad Hoc Parliamentary
Inquiry Committee, the Chairman of the Standing Committee of the
National Assembly on Science, Education, Culture, Youth and Sport
(responsible for the media reform), the members of the now defunct
fact-finding group, the Chairman and members of the Armenian National
Delegation to our Assembly, representatives of the opposition, including
the leader of the Armenian National Congress, the defence lawyers
of the opposition leaders whose cases are currently under consideration
in the courts, families of the victims of the events of 1 and 2
March 2008, as well as representatives of civil society and members
of the diplomatic community in Yerevan. We wish to thank the National
Assembly of Armenia, as well as the Special Representative of the
Secretary General of the Council of Europe in Yerevan, for the excellent
programme as well as the hospitality and support provided to our delegation.
Our findings and conclusions of this visit are contained in this
explanatory memorandum which revises and updates the text already
discussed at the Monitoring Committee’s meeting in Paris on 5 June
2009. We have also prepared a preliminary draft resolution for consideration
and adoption by the Committee.
2. Implementation
of Assembly requirements
2.1. Freedom of Assembly
17. In
Resolution
1620 (2008), the Assembly welcomed the adoption of amendments to
the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations,
in line with the recommendations of the Venice Commission and Assembly
demands. However, it also urged the Armenian authorities to guarantee
freedom of assembly in practice and therefore to ensure that no
undue restrictions, especially with regard to the venues requested,
be placed upon rallies organised by the opposition in compliance
with the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations.
18. However, as mentioned in our previous report
, a number of opposition demonstrations
that were requested took place on the basis of a last minute agreement
between the police and organisers, and not on the basis of an explicit
authorisation to hold the rally by the Yerevan city administration.
In addition, a number of spontaneous demonstrations were broken
up by the police. In our report, we therefore urged the authorities to
honour their promise and to ensure that the fundamental right of
freedom of assembly is fully respected in Armenia.
19. Regrettably, the above-mentioned practices have continued
to occur over recent months, despite the criticism of the Assembly.
On 9 February 2009, the Armenian National Congress requested authorisation
from the Yerevan City Council to hold a rally, on 1 March 2009,
in front of the Matenadaran in central Yerevan, to commemorate the
events of 1 and 2 March 2008. This request was rejected by city
Council, which proposed, in a similar fashion to previous rallies,
an alternative venue in a soccer stadium in Yerevan. This alternative venue
was rejected as unsuitable by the organisers. The organisers, who
claimed that the rejection of their request was not received within
the timeframe stipulated by law, and therefore that the rally was
authorised, maintained their plans to organise their rally in central
Yerevan, which was ultimately allowed to take place by the police,
but without explicit authorisation by the Yerevan municipal authorities.
Moreover, a number of “spontaneous demonstrations” of groups of
persons calling for the public to participate in the opposition
rally on 1 March 2009 were reportedly broken up by the police.
20. We are aware of a number of other cases in which requests
from opposition parties to organise rallies and public meetings
were not authorised by the municipal authorities of different localities
on what could be considered questionable grounds. However, we regret
that in most, if not all, cases the organisers of these rallies
did not appeal the decisions of the municipal authorities to the
courts
, which is an explicit right
granted to them in the Law on Conducting Meetings, Assemblies, Rallies
and Demonstrations. This effectively means that the courts did not
have the possibility to express themselves on the interpretation
to be given to the Law on Conducting Meetings, Assemblies, Rallies
and Demonstrations by the authorities, and, ultimately, forecloses
any possibility for the European Court of Human Rights to decide
on these cases. We are of course aware that a possible application
to the Court in Strasbourg would not affect the outcome of the decision
not to grant an authorisation for a particular rally. However, a
possible decision of the Court would contain important guidelines
for both the authorities and the organisers about the interpretation
of the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations
in full conformity with the right of freedom of assembly as enshrined
in the European Convention on Human Rights. Therefore, we encourage
the organisers who see their requests being refused to use all legal
domestic means available to them to challenge the refusal.
2.2. Independent, transparent
and credible inquiry into the events on 1 March 2008 and the circumstances
that led to them
21. On 16 June 2008, the National Assembly of Armenia
adopted a resolution in which it established a Parliamentary Ad
Hoc Committee “to conduct an inquiry into the events of 1 and 2
March 2008, as well as the causes that led to them”. However, as
a result of its composition, which was dominated by representatives
of the ruling coalition, and effectively boycotted by the forces
loyal to Mr Ter-Petrossian, the Commissioner for Human Rights, as
well as the Assembly, concluded that this committee would not have
the required credibility and impartiality in the eyes of the Armenian
public. The Commissioner therefore proposed that a separate small group
of independent experts should be set up to establish the facts with
regard to the events on 1 and 2 March 2008 and the circumstances
that led to them. This group should be composed on the basis of
parity between the opposition and the ruling coalition and mutual
consensus on its members. The Parliamentary Inquiry Committee would
then be tasked with drawing the political conclusions based on the
findings of the expert group. This proposal was accepted by both
the authorities and the opposition. The fact-finding group, composed
of two members appointed by the ruling coalition, one by the Heritage
Party, one by the Armenian National Congress and one by the Human
Rights Defender of Armenia, was formally set up by Presidential decree
on 23 October 2008.
22. During our visit to Armenia on 15 January 2009, we met the
members of the fact-finding group. At that time, we had already
some concerns that the political controversy with regard to the
people deprived of their liberty in relation to the events of 1
and 2 March 2008, as well as the assertion, at that time, by the
authorities that the events on 1 and 2 March 2008 were aimed at
the usurpation of the state power and the violent overthrow of the
constitutional order of Armenia, would make it difficult for the
members of this group, especially those appointed by the opposition
and government coalition, to maintain the required neutrality in
their work. In addition, despite the fact that the work of the fact-finding
group was to take place in complete confidentiality, leaks to the
media, by both sides, on the ongoing investigations by the fact-finding
group were putting pressure on the working relations between the
members of the group. However, we were hopeful that the members would
be able to overcome these difficulties and execute their tasks in
line with the mandate set in the Presidential decree.
23. Regrettably, the work of the fact-finding group has run into
serious problems. On 5 May 2009, after the contents of its report
to the Parliamentary Ad-Hoc Inquiry Committee was leaked to the
opposition press, the Chairman of the fact-finding group, Mr Vahe
Stepanian
, announced that
he, as well as the members nominated by the governing coalition,
were suspending their participation in the group until 18 May 2009,
in order to take a “short rest from the difficult work”. The fact-finding
group reconvened on 17 May 2009, but suspended its work a few days
later, when, on 20 May 2009, Mr Vahe Stepanian announced his resignation from
the group, stating that the insurmountable tensions in the group
were paralysing its work and that he was no longer capable of reconciling
the two different sides. While the Human Rights Defender declared
himself ready to nominate a new person to this group, the group
effectively ceased to work from that moment onwards and was disbanded
by Presidential decree on 9 June 2009. The materials collected by
the fact-finding group were subsequently submitted to the Ad Hoc
Parliamentary Inquiry Committee.
24. The exact reasons for the breakdown of the fact-finding group
are a matter of controversy. The authorities squarely blame the
opposition members in the group who, in their opinion, politicised
the work of the fact-finding group and, instead of establishing
the facts, tried to place themselves in the role of the police and
the prosecution. For their part, the opposition members assert that
the authorities decided to wrap up the fact-finding group when it
became clear that the group was unearthing facts that cast serious
doubts on the official version of the events on 1 and 2 March 2008.
Moreover, the opposition members in the fact-finding group claim
that the authorities were continuously reluctant to co-operate fully
with the fact-finding group and to provide it will all the information
it requested. In their opinion, this is another sign that the authorities
were never sincerely interested in a successful investigation by
the group.
25. In our meeting with the Human Rights Defender and the Chairman
of the now defunct fact-finding group, both blamed equally the representatives
nominated by the authorities as well as those nominated by the opposition
for politicising the work of the fact-finding group. In general,
they concluded that these members had continued to work as representatives
of the political forces that had nominated them, instead of being independent
experts, as was foreseen in the decree setting up the fact-finding
group. In that respect, they lamented the low level of professionalism
of the members nominated by both sides in the fact-finding group.
26. In our meeting with the former members of the fact-finding
group, the insurmountable tensions between them, as well as the
continuous attempts to politicise the discussions by members of
both sides, were blatantly clear. In our opinion, it is therefore
difficult to see how the fact-finding group, in its current format,
could have concluded its task in the professional and impartial
manner that was expected of it. That said, we can only regret the
speed and manner in which the authorities disbanded the fact-finding
group, without any proper consultations with the opposition when
the problems in the fact-finding group became apparent. This risks
to strengthen the allegations in Armenian society that the authorities
disbanded the fact-finding group when it started to produce findings
that were uncomfortable to them.
27. The independent, transparent and credible inquiry into the
events on 1 and 2 March 2008, and the circumstances that led to
them, is one of the key demands made by the Assembly. We stress,
in this respect, that an independent, credible and transparent inquiry
into the events of 1 and 2 March 2008, and the circumstances that
led to them, remains crucial in order to overcome the political
crisis and to ensure that a similar breakdown of the democratic
system can not be repeated in the future. The disbanding of the
fact-finding group therefore should not be allowed to circumvent
the conclusion of an independent and credible inquiry as demanded
by the Assembly.
28. Since the disbanding of the fact-finding group, the Ad Hoc
Parliamentary Inquiry Committee is now the only body conducting
an overall inquiry into the events of 1 and 2 March 2008 and their
circumstances, and its work has therefore gained increased importance.
This Committee has continued to work in parallel to the fact-finding
group and has reportedly been more independent in its work than
was initially expected. It has, reportedly, come up with a number
of important findings and conclusions, including a number that raise questions
about the authorities’ version of the events of 1 and 2 March 2008.
In addition, since the Armenian Revolutionary Front has left the
ruling coalition, the predominence of the coalition in this Committee
has been somewhat reduced. We would suggest that the National Assembly
investigate the possibilities to strengthen the role of the opposition
in the Committee’s work, with a view to enhancing its credibility
in the eyes of the Armenian public. However, we would like to stress
that, in the end, it is the final outcome of its investigation that
will determine whether the criteria of impartiality and credibility
have been met and whether further investigations are necessary.
29. We are seriously concerned about reports from the members
of the fact-finding group, including its Chairman, that the authorities
had often been reluctant to co-operate fully with the fact-finding
group and to provide it with the information it requested. This
point was also made by the Chairman of the Ad Hoc Parliamentary
Inquiry Committee, who informed us that his Committee had also encountered
difficulties in obtaining the full and complete information it had
requested and that the co-operation from certain governmental bodies,
especially from the law enforcement, security and investigation
services, left much to be desired. In this respect, we would recall
that, in
Resolution 1643
(2009), the Assembly called on the Armenian authorities to
ensure that the investigation demanded by the Assembly would be
given the fullest possible co-operation by, and full access to information
from, all state bodies and officials, without exception.
30. Despite the acrimonious working relations, all former members
of the fact-finding group agreed that the group had found evidence
and established facts that could be important for the investigation,
and that, indeed, one interim report was forwarded to the Ad Hoc
Parliamentary Inquiry Committee. It is important that the findings
and conclusions of the fact-finding group be considered in the investigation.
We therefore urge the Ad Hoc Parliamentary Inquiry Committee to
ask all former members of the fact-finding group to present their individual
reports to it, and to publish these combined findings and conclusions,
along with any relevant materials it may have collected, as foreseen
in the Presidential decree setting up the fact-finding group. The publication
of these reports would also, to some extent, counter the allegations
that the group was abolished because its findings were uncomfortable
for the authorities.
31. We are especially concerned with the fact that the investigation
by the Prosecutor General into the 10 deaths that occurred in relation
to the events of 1 and 2 March 2008 has to date not led to any concrete results.
The human dimension of this failure became clear during a very emotional
meeting with the relatives of the victims, who all complained about
the lack of information by the relevant authorities and expressed
the feeling of being ostracised by the bodies responsible for investigating
the deaths of their beloved ones. We therefore urge the authorities
to ensure that this investigation is concluded satisfactorily and
without any undue delay. In this respect, we welcome the decision
by the President of Armenia to ask the Prosecutor General to send
a full report on his investigations into the 10 deaths to the Ad
Hoc Parliamentary Inquiry Committee, in order for the latter to
review the investigations so far conducted and move its conclusions
forward.
2.3. Release of persons
deprived of their liberty in relation to the events of 1 and 2 March
2008
32. Following our visit in January 2009, the Speaker
of the National Assembly, on 22 January 2009, signed a decree setting
up a special Working Group within the Assembly that was tasked with
drafting, within a one-month period and in co-operation with the
relevant bodies of the Council of Europe, amendments to Articles 225
and 300 of the Criminal Code of Armenia, in order to address the
legal shortcomings in these articles and bring them in line with
Council of Europe standards.
33. In line with the decree of the Speaker of the National Assembly,
from the onset of its work, the working group sought co-operation
with the Venice Commission of the Council of Europe. On 2 February,
the Chairman of this working group, Mr Davit Harutyunyan, met with
representatives of the Venice Commission in Tbilisi. On 19 February
2009, the working group asked the Venice Commission for an opinion
on the draft amendments proposed to the Criminal Code and submitted
to the Parliament. On 26 February 2009, the Parliament adopted the
amendments in a first reading. The Venice Commission adopted its
opinion on these amendments on 13 and 14 March 2009. The recommendations
of the Venice Commission were subsequently addressed in the amendments
that were adopted during the second and final reading on 18 March
2009. They were subsequently signed into law by the President of
Armenia on 20 March 2009.
34. While the old Article 300 defined usurpation of power as actions
directed to the violent takeover of the state power, or towards
the violent overturning of the constitutional order, the new Article
now defines usurpation of state power as the seizing of the powers
of the President of the Republic, National Assembly, Government
or Constitutional Court, through violence, threat of violence or
any other manner not envisaged in the Constitution of Armenia, thereby
considerably limiting the scope for its interpretation.
35. With regard to Article 225 (mass disorders) of the Criminal
Code, the amended article now clearly defines mass disorder and
criminalises the organisation (as a wilful act) of mass disorders
and not the mere non-violent participation in such events. In addition,
the problematic old Article 225-3 (mass disorder accompanied with
murder) was deleted from this article. Mass disorder is now added
as an aggravating circumstance in the articles of the Criminal Code
that deal with murder, which is clearly defined as the illegal wilful
deprivation of a person’s life.
36. In its opinion
,
the Venice Commission considered that these amendments to the Criminal
Code generally represent an improvement on previous provisions in
that they reduce the scope for overbroad and abusive interpretation.
In our statements, we welcomed these amendments as a general improvement
of the Criminal Code and as a potentially important step towards
resolving the situation of the persons deprived of their liberty
in relation to the events of 1 and 2 March 2009 on seemingly artificial
and politically motivated charges. However, we also stressed that
it would be the impact of these amendments on the situation of these persons
that would ultimately establish whether the Assembly demands in
this respect were met. Moreover, we also underscored that there
are other categories of persons deprived of their liberty in relation
to the March events that are considered problematic by the Assembly
and which are not covered by these changes to the Criminal Code.
37. Following the changes to the Criminal Code, the Prosecutor
General revised the charges against the seven opposition members,
who are seen by the authorities as the “ring-leaders” of the events
of 1 and 2 March 2008. The charges under Article 300 (usurpation
of power) were dropped against all seven, and the charges under
Article 225-3 (mass disorder accompanied by murder) were changed
to Article 225-1 (organisation of mass disorder). The dropping of
the charges under Article 300 is especially significant as it confirms
that the authorities have accepted our long held belief that the
events of 1 and 2 March 2008 cannot be seen as an attempt at a coup
d’Etat.
38. As a result of the revision of the charges, all seven members
were charged under Article 225-1 only, except for Mr Sasun Mikaelyan,
who is also charged under Article 235 (illegal possession of firearms),
and Mr Miasnik Malkhasyan, who is also charged under Articles 38
(complicity) and 316 (violence against a representative of the authorities)
of the Criminal Code. Furthermore, as the events of 1 and 2 March
are no longer seen as an organised attempt to overthrow the state
power, the case against the seven was split into five separate court
cases.
39. Questions have been raised about the decision of the Prosecutor
General to charge the seven under Article 225-1, which requires
that it be established that the person charged was personally organising
the actions of mass disorder. However, we consider that it is now
up to the Courts to decide if these charges under the recently amended
Article 225-1 can be substantiated. Reportedly, critical questions
with regard to the charges brought under Article 225-1 have indeed
been raised by the Courts.
40. In a preoccupying development, a significant number of prosecution
witnesses have alleged that they were pressured by the police into
making false testimonies against the seven opposition members currently
on trial. This led the Human Right Defender of Armenia to issue
a statement, on 7 May 2009, in which he expressed his strong concern
about the numerous complaints that his office received about the
police obtaining “evidence” by applying pressure and duress on potential
witnesses. This is an issue of serious concern to us.
41. On 13 May 2009, the Court decided, following a psychiatric
evaluation, that Mr Shant Harutiunian - one of the seven opposition
leaders on trial - was "non compos mentis"
during his actions on 1 and 2 March 2008, and therefore decided
to drop the charges and release him. In addition, since our last
report, three more persons requested and were granted pardons in
relation to the events of March 2008.
42. As mentioned above, not all categories of persons deprived
of their liberty in relation to the events of 1 and 2 March 2008,
and whose continued detention is deemed problematic by the Assembly,
are covered by the changes to the Criminal Code of March 2009. This
is most notably the case for the persons charged and convicted solely
on the basis of police testimony, without substantial corroborating
evidence. In Resolution 1620 (2008), the Assembly considered that
verdicts based solely on police evidence, without corroborating evidence,
were unacceptable. Regrettably, no action to address this issue
has been undertaken to date by the authorities. This is of special
concern in the light of the increasing number of allegations that
witnesses were pressured by the police into making false testimonies
against a number of opposition members.
43. As a result of the concerns regarding the nature of the charges
and legal proceedings against those detained after the events of
March 2008, it is our deepest conviction that the release of all
persons arrested in the framework of the events of 1 and 2 March
2008, who did not personally commit violent crimes, will alone lead
to the dialogue and reconciliation that is so necessary for Armenia.
Thus we have on numerous occasions suggested that the President
consider using his constitutional right to grant amnesty to the
persons deprived of their liberty in relation to the events of 1
and 2 March 2008. However, in our conversations with him, the President
indicated that he would be reticent to do so while the cases were
still under consideration by the Courts
44. With the cases against the now six opposition leaders drawing
to a close in the Courts, there were numerous signals and reports
in the Armenian press that the Armenian authorities were now seriously considering
the possibility of granting an amnesty in relation to the events
of March 2008. Indeed, in response to questions from the press,
on 28 May 2009 - the National Day of Armenia -, the President declared
that: “In 2006 amnesty was last announced.
If during those three years the idea of announcing a new amnesty
has been matured in the society, then I am ready to use my Constitutional
right. Hence, I call on the political forces and public council
to present their recommendations on the necessity and conditions
of the amnesty to the President’s Cabinet, and if it turns out that
there is a comprehensive need matured among the society, I’ll use my
Constitutional right and ask the National Assembly to adopt a law[to grant Amnesty]”. This was followed,
in rapid succession, by statements by numerous political leaders
and personalities, including by the Human Rights Defender of Armenia,
that they considered the time ripe for a general amnesty in relation
to the events on 1 and 2 March 2008.
45. On 16 June 2009, the President of Armenia finally sent a proposal
for a general amnesty to the National Assembly. His proposal was
promptly discussed one day later by the Standing Committee on State
and Legal Affairs of the National Assembly, under the chairmanship
of Mr Davit Harutyunyan, who also chairs the Armenian Delegation
to our Assembly. The President of Armenia having agreed to the changes
proposed by the Standing Committee on State and Legal Affairs, the
general amnesty was adopted by the National Assembly, in an extraordinary
sitting, on 19 June 2009.
46. As a result of the decision that amnesty can only be given
to those persons deprived of their liberty in relation to the events
on 1 and 2 March 2008 whose cases have been adjudicated by the Courts,
the format of the amnesty is rather complex
.
It consists of a general amnesty for persons sentenced to prison
for up to 3 years and for persons who are charged for crimes which
carry a maximum prison term that does not exceed 3 years. In addition,
it declares an amnesty for specific categories of persons who have
been convicted to prison terms of 3 to 5 years. These categories
include, inter alia, elderly persons with health problems, war veterans and
persons convicted in relation to the events on 1 and 2 March 2008.
Persons in those categories whose sentences exceed 5 years in prison
will not be released, but will have their sentences cut by half.
The amnesty explicitly excludes persons convicted under a number
of articles of the Criminal Code that deal in general with aggravated
violent crimes or illegal arms possession.
47. Currently six cases are still pending before the courts against
the six opposition members who are seen as the “ring-leaders” by
the authorities. Their cases are being concluded at the moment of
writing and the verdict is expected in the forthcoming days. Prison
terms of 6 years have been demanded by the prosecution against 5
of the 6 persons. They are therefore widely believed to be covered
by the amnesty, as courts in Armenia generally hand down more lenient
sentences than those demanded by the prosecution. Only one of these
persons, who is also charged with illegal weapon possession, is
expected not to be released, but will have his sentence reduced
by half. We have received repeated assurances from the authorities
that the cases against these persons will be adjudicated in the
forthcoming days. However, in the event of a delay, we would call
upon the authorities to release the persons concerned pending the
conclusion of their trials.
48. As a result of this amnesty, most, but not all, persons deprived
of their liberty in relation to the events of 1 and 2 March 2008
will be released. We intend to evaluate each of the small number
of remaining cases to ensure that they do not include persons who
fall in the categories of convictions that are deemed problematic by
the Assembly.
49. A small number of persons who are charged in relation to the
events of 1 and 2 March 2008, including under Article 225 of the
Criminal Code, are currently in hiding. However, the terms of the
amnesty will also be applicable to them, after their trials are
completed, if they hand themselves in to the authorities before
31 July 2009. In view of the length of the court cases against the
other opposition members, we call upon the authorities to allow
those persons to remain free pending the completion of their trials.
50. As a rule, civil law suits are not covered by an amnesty.
Among the opposition, there is therefore some concern that the authorities
would start civil law suits against those convicted on charges of
organisation of mass disorder (Article 225-1 of the Criminal Code),
for the damage to public property caused by the riots. It is clear
that any civil law suit filed by a public authority to that effect
would undermine – and will be considered by us being aimed at undermining
– the intention and purpose of the amnesty. We therefore strongly
urge the authorities to ensure that no such civil claims of legal
responsibility are filed by any public authority.
51. The amnesty does not presume an acceptance of guilt on behalf
of the persons convicted. They therefore have the full right to
appeal their convictions, also after they have been released under
the amnesty.
52. In conclusion, we strongly welcome the proposal for a declaration
of amnesty by the President of Armenia, and its prompt adoption
by the National Assembly of Armenia. In so doing, the Armenian authorities have
complied with a crucial demand of the Assembly. Although the authorities
have opened with this amnesty an important new chapter in the process
of normalisation of political life in Armenia, the process has not
ended and other important steps need to be taken to achieve this,
in particular with respect to the transparent, credible and impartial
investigation demanded by the Assembly. We will fully support and
accompany that process in the framework of the regular monitoring
procedure of the Assembly with respect to Armenia.
2.4. Media reform
53. In
Resolution
1609 (2008), the Assembly considered that the independence from
any political or economic interest of both the National Television
and Radio Commission (the media regulatory body in Armenia) and
the Public Television and Radio Council must be guaranteed. In addition,
it considered that the composition of these bodies should be altered
to ensure that they are truly representative of the Armenian society.
Moreover, in
Resolution
1620 (2008), the Assembly recalled that there is a need for a pluralistic
media environment in Armenia and, referring to the Strasbourg Court
judgment concerning the denial of a broadcasting license to the
A1+ channel, called upon the authorities to ensure an open, fair
and transparent licensing procedure, in line with the Guidelines
adopted by the Committee of Ministers of the Council of Europe, on
26 March 2008, and with the case law of the Strasbourg Court.
54. As mentioned in our previous report, a legislative package
for the reform of the Media was drawn up by the National Assembly
of Armenia in close consultation with the relevant departments of
the Council of Europe. A key part of this legislative reform package
concerns the manner in which the members of the National Television
and Radio Commission and the Public Television and Radio Council
are appointed, with a view to ensuring the independence of these
members and, as a result, of the work of these two bodies. In her
opinion on the amendments on the Law on Television and Radio, the
expert engaged by the Council of Europe notes that nearly every
significant recommendation by Council of Europe experts have been
adopted. However, the opinion also notes a number of issues that
remain to be addressed. The members of the above-mentioned regulatory
bodies are for one half appointed by the President of Armenia, and
for one half by the National assembly of Armenia. While the amendments
introduce an appointment procedure for the members appointed by
the National Assembly that is largely in line with international
standards, the appointment process by the President is not established
in the Law on Television and Radio. The opinion therefore recommends
that the President issues an order establishing a procedure for
his appointments to these two bodies which would mirror those in
the law for the appointments by the national Assembly. The opinion
notes that, until such a procedure is put in place, the appointments
will not be in compliance with Council of Europe standards and these
bodies cannot be held to be independent until such time as all its
members are appointed through a politically neutral procedure. In
addition, the opinion recommends that the list of incompatibility
of membership of these bodies should be extended to exclude actively
serving politicians.
55. We strongly support these recommendations, as well as the
others contained in the opinion, and recommend that they be followed
up by the authorities. In addition, we note that the amendments
did not explicitly stipulate that the composition of the two regulatory
bodies should reflect a broad cross-section of the Armenian society.
We recommend to the Parliament to consider further amendments to
ensure that, within the framework of the appointment procedure spelled
out in the current law, the two bodies should reflect the Armenian
society.
56. On 9 September 2008, the National Assembly of Armenia adopted
an amendment to the Law on Television and Radio that cancels all
tenders for broadcasting licences until 2010, when the introduction
of digital broadcasting in Armenia will be finalised. This amendment
was strongly criticised by the opposition in Armenia. In
Resolution 1643 (2009), the Assembly stated that, without wanting to pre-empt
the merits of the reasons behind this amendment, the technical requirements
for the introduction of digital broadcasting should not be used
by the authorities to unduly delay the holding of an open, fair
and transparent tender for broadcasting licences as demanded by
the Assembly. The Council of Europe has provided a spectrum analyst to
assess the technical implications of the introduction of digital
broadcasting in Armenia. His preliminary findings are currently
being discussed with the Armenian authorities.
2.5. Other reforms needed
to address the underlying causes of the crisis
57. In
Resolution
1609 (2008), the Assembly also called for a dialogue between the
authorities and opposition on the reform of the political system,
judiciary and police forces, as well as electoral reform, in order to
address the underlying causes of the political crisis that ensued
after the Presidential election in February 2008.
58. The initiatives taken by the authorities in these areas have
not yet been finalised. Since our last report, our focus has been
on the independent investigation into the events of 1 and 2 March
2008, as well as the release of persons deprived of their liberty
in relation to these events. However, the developments over the
last 15 months have clearly demonstrated the pertinence of the reforms
demanded by the Assembly, and the continuing need for their implementation,
without delay, by the authorities.
59. The general controversy around the Yerevan elections shows
that public trust in the democratic nature of the electoral process
is still very low. This, as well as the shortcomings and violations
noted, underscore the need for electoral reform. This process was
started after the Presidential elections in a special working group set
up by the National Assembly, but little activity has been carried
out by this group lately. The National Assembly should now give
priority to the work of this working group in order to amend the
electoral legislation. All political forces, parliamentary and extra-parliamentary,
should be closely involved in this process, and the changes should
have a broad consensus among them. In addition, the Venice Commission
should be asked for an opinion on the amendments, and their recommendations
should be addressed, before the amendments are adopted in a final
reading.
60. The preliminary findings of both the Ad Parliamentary Inquiry
Committee, as well as the independent fact-finding group, have raised
serious questions about the conduct of the police during and after
the events of 1 and 2 March 2009. In addition, during the trials
against the seven opposition leaders, several prosecution witnesses
have retracted their testimonies against these opposition members,
stating that they were given under duress by the police. This underscores
the need for drastic reforms of the police as well as the establishment
of proper public oversight of the police forces, as demanded by
the Assembly. Co-operation should be sought with the relevant Council
of Europe departments and this process should be started without delay.
61. In previous reports, the rubber-stamping by the courts of
prosecution requests for detention was already mentioned as a concern.
Moreover, the court proceedings against the seven opposition members
have strengthened the notion that the independence of the judiciary
is still far from satisfactory in Armenia. Reforms should be initiated
without any further delay to address this situation, which is instrumental
in explaining the lack of public trust in the authorities.
3. Conclusion
62. As a result of the efforts by the Assembly, as well
as other parts of the Council of Europe, as well as the excellent
co-operation with the Armenian delegation to the Assembly over the
last 15 months, incremental progress has been made by the authorities
to comply with the demands of the Assembly. The controversial amendments
to the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations
have been repealed, an investigation into the events of 1 and 2
March 2008 has started, important changes to problematic provisions
in the Criminal Code have been adopted, and several reforms recommended
by the Assembly have been initiated. That process has now culminated
in an amnesty as a result of which most, albeit not all, persons deprived
of their liberty in relation to the events of 1 and 2 March 2008,
will be released. Although the declaration of amnesty means that
the authorities have complied with a crucial demand of the Assembly
and, most importantly, that an important new page has been turned
in the normalisation of Armenia’s political life and resolution
of the crisis, these achievements should not be seen as the end
of the process. The Monitoring Committee should fully support and
accompany that process in the framework of the regular monitoring procedure
of the Assembly with respect to Armenia.
***
Reporting committee:
Committee on the Honouring of Obligations and Commitments by Member
States of the Council of Europe (Monitoring Committee)
Reference to committee: Resolution 1115 (1997)
Draft resolution approved
unanimously by the committee on 22 June 2009
Members of the committee:
Mr Serhiy Holovaty (Chairperson),
Mr György Frunda (1st Vice-Chairperson), Mr Konstantin Kosachev (2nd Vice-Chairperson),
Mr Leonid Slutsky (3rd Vice-Chairperson), Mr Aydin Abbasov, Mr Pedro Agramunt, Mr Miloš Aligrudić, Mrs
Meritxell Batet Lamaña, Mr Ryszard Bender,
Mr József Berényi, Mr Luc van den Brande, Mr Mevlüt Çavuşoğlu, Mr Sergej Chelemendik,
Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier,
Mr Telmo Correia, Mrs Herta
Däubler-Gmelin, Mr Joseph Debono Grech,
Mr Juris Dobelis, Mrs Josette Durrieu,
Mr Mátyás Eörsi, Ms Mirjana Ferić-Vac, Mr Giuseppe Galati, Mr Jean-Charles Gardetto, Mr József Gedei, Mr Marcel
Glesener, Mr Charles Goerens, Mr Andreas Gross, Mr Michael Hagberg, Mr Holger Haibach, Ms
Gultakin Hajibayli, Mr Michael Hancock, Mr Davit Harutyunyan, Mrs Olha Herasym’yuk,
Mr Andres Herkel, Mr Kastriot
Islami, Mr Mladen Ivanić,
Mr Miloš Jevtić, Mrs Evguenia Jivkova,
Mr Emmanouil Kefaloyiannis, Mr Hakki Keskin,
Mr Haluk Koç,Mrs Katerina Konečná, Mr Jaakko Laakso, Mrs
Sabine Leutheusser-Schnarrenberger, Mr Göran Lindblad, Mr René van
der Linden, Mr Eduard Lintner,
Mr Pietro Marcenaro, Mr Bernard Marquet,
Mr Dick Marty, Mr Miloš Melčák,
Mr Jean-Claude Mignon, Mr
João Bosco Mota Amaral, Mrs
Yuliya Novikova, Mr Theodoros
Pangalos, Mrs Elsa Papadimitriou,
Mr Alexander Pochinok, Mr
Ivan Popescu, Ms Maria Postoico,
Ms Marietta de Pourbaix-Lundin,Mr Christos Pourgourides,
Mr John Prescott, Mrs Mailis
Reps, Mr Andrea Rigoni, Mr
Ilir Rusmali, Mr Armen Rustamyan,
Mr Indrek Saar, Mr Oliver Sambevski,
Mr Kimmo Sasi, Mr Samad Seyidov,
Mr Sergey Sobko, Mr Christoph Strässer, Mrs Chiora Taktakishvili, Mr Mihai Tudose,
Mrs Öslem Türköne, Mr Egidijus Vareikis,
Mr José Vera Jardim, Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend, Mrs
Karin S. Woldseth, Mrs Gisela Wurm, Mr Andrej Zernovski.
N.B.: The names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mrs Chatzivassiliou, Mr Klein, Ms Trévisan, Mr Karpenko