Doc. 9542

13 September 2002

Honouring of obligations and commitments by Armenia

Report

Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe

Rapporteurs: Mrs Irena Belohorska, Slovakia, European Democratic Group, and Mr Jerzy Jaskiernia, Poland, Socialist Group

Summary

The Rapporteurs acknowledge that, since its accession to the Council of Europe on 25 January 2001, Armenia has made substantial progress towards honouring the obligations and commitments it accepted, in particular as regards signature and ratification of European conventions and domestic legislation.

However, they regret that a number of fundamental commitments have not been honoured within the time limits previously agreed to, most particularly ratification of Protocol No. 6 and adoption of the new Criminal Code. This is why it is proposed that the Assembly calls on Armenia to abolish the death penalty without further delay and, in any event, by June 2003, failing which the Rapporteurs propose that the Assembly reconsider the credentials of the Armenian parliamentary delegation.

The Rapporteurs also expect progress as regards improving the functioning of the judiciary and independence of the judges, improving conditions of detention, tackling the question of the conscientious objectors to the military service and the introduction of an alternative civil service. They call on Armenia to strengthen the fight against corruption, as well as the fight against the human rights abuses perpetrated by law enforcement bodies.

I.       Draft resolution

1. The Assembly acknowledges that, since its accession on 25 January 2001, Armenia has made substantial progress towards honouring the obligations and commitments it accepted as listed in Opinion No. 221 (2000).

2. On the matter of conventions, the Assembly notes with satisfaction that:

i.        Armenia has ratified the European Convention on Human Rights and its Protocols Nos. 1, 4 and 7, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its Protocols, the General Agreement on Privileges and Immunities and its Protocols, the European Convention on Extradition, the European Convention on Mutual Assistance in Criminal Matters, the Convention on the Transfer of Sentenced Persons, the European Charter for Regional or Minority Languages and the European Charter of Local Self-Government;

ii.        Armenia has signed 20 other treaties, including the European Social Charter, the Outline Convention on Transfrontier Co-operation and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.

3. The Assembly cannot accept that Armenia has not honoured its commitment to ratify Protocol No. 6 to the European Convention on Human Rights, concerning the abolition of the death penalty, within a year of its accession.

4. Concerning domestic law, the Assembly acknowledges the major effort Armenia has made in the last year and a half, and particularly welcomes the adoption of a new Electoral Code, the law on political parties, the law on NGOs and the law on the civil service.

5. It 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.

6. The Assembly calls for the complete abolition of the death penalty, without any exceptions or restrictions. The Assembly notes the existence of a de facto moratorium since 1991 and takes note of the formal assurances of the authorities that no death sentence has been carried out since then.

7. However, the Assembly welcomes the assurance given to the rapporteurs by the president of the Republic of Armenia to sign, once the Criminal Code has been approved, a decree commuting the sentence of the persons currently sentenced to death to life imprisonment.

8. 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;

iv.        to fully guarantee the independence of the judges, in keeping with Council of Europe standards;

v.        to open a training centre for judges, operating under the supervision of the Judicial Service Commission.

9. The Assembly further invites 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.

10. It invites the authorities to defer the adoption of the law on the ombudsman no longer.

11. The Assembly notes that in spite of the commitment entered into, the draft law on the media has still not been submitted to the National Assembly.

12. The Assembly notes that the allocation of radio and television broadcasting licences gave rise to strong protests in April 2002; it calls on the authorities to amend the law on broadcasting without delay, taking into account the recommendations made by the Council of Europe; it takes note of the authorities’ firm commitment to organise a new call for tenders for new frequencies on 25 October 2002.

13. The Assembly welcomes the attention the authorities are giving to a draft law on alternative military service. It points out, nevertheless, that as it stands at present the draft law is not in conformity with the commitment the authorities accepted to introduce an alternative civilian service. It regrets that the authorities continue to prosecute and sentence young conscientious objectors.

14. The Assembly encourages the authorities to speed up the reforms in the local government area, 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.

15. The Assembly urges the authorities to register the Jehovah’s Witnesses as a religious organisation.

16. The Assembly encourages the authorities to embark resolutely on the battle against corruption, and to implement the recommendations made in the national anti-corruption strategy. It also invites them to sign and ratify the Council of Europe’s Criminal and Civil Law Conventions on Corruption.

17. The Assembly welcomes the transfer of the prisons and detention centres from the Ministry of the Interior to the Ministry of Justice, and acknowledges the significant improvements in detention conditions. It calls on the authorities to continue their efforts, in particular to improve medical care for detainees. In this respect it salutes the considerable work accomplished in Armenia in recent years by the International Red Cross.

18. It notes, however, that the detention centre of the Ministry of National Security has not yet been transferred to the Ministry of Justice, and asks the authorities, pending an effective transfer, to ensure that the conditions of detention there are in conformity with European standards.

19. Concerning the revision of the Constitution which is currently in progress, the Assembly takes note of the authorities’ determination to adopt the draft text of the new Constitution by next spring and to submit it to the nation for approval by referendum. It asks the authorities to continue their co-operation with the Venice Commission and to heed the recommendations made. It nevertheless invites the authorities to examine the possibility in the draft Constitution of increasing the parliamentary supervision role of the National Assembly.

20. The Assembly calls on the authorities seriously to investigate the acts of torture, violence, ill treatment and bribery perpetrated by law enforcement bodies.

21. With the increase in the number of seats allocated by proportional representation, the Assembly urges the political parties to open up their lists to Armenian women, in order to secure gender parity in parliament.

22. The Assembly is sensitive to the consequences of land and property privatisation operations in urban or rural areas for many modest or poor families, refugees or the Yezidi community. It asks the Armenian authorities to give all their attention to this question and to find equitable solutions that do not disadvantage one group to the advantage of another, more affluent group.

23. The Assembly expresses its disappointment at the lack of development of regional co-operation in the Caucasus region, and recalls that the accession to the Organisation of the three countries concerned gave rise to great hopes of democratic stabilisation in the region.

24. Concerning the settlement of the conflict in Nagorno-Karabakh;

i.        The Assembly acknowledges and welcomes the undeniable efforts Armenia has made to maintain regular high-level contacts with Azerbaijan with a view to arriving at a suitable peaceful solution;

ii.        The Assembly strongly hopes that the negotiation process in progress will soon lead to an acceptable settlement of the territorial conflict, in keeping with the principles of the Council of Europe and of international law;

iii.        It recalls that it can envisage closing the monitoring procedure only if the state concerned has honoured all its main commitments, which, in the case of Azerbaijan and Armenia, include an agreement on the peaceful settlement of the Nagorno-Karabakh conflict – including the question of the occupied territories and other issues dealt with by the Minsk Group –, which has been going on for more than 8 years now.

25. In view of the above considerations, and the obligations and commitments which remain to be fulfilled, the Assembly, while acknowledging that Armenia has made substantial progress since its accession, decides to continue the monitoring procedure, in close collaboration with the Armenian delegation.

26. 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.

II.       Explanatory memorandum by the co-rapporteurs

CONTENTS       Page

I.       Introduction       ……………………………………………………………………… p. 6A.

      A. The monitoring procedure

      B. The political and economic context

II.       Signature and ratification of Council of Europe conventions……………… p. 8

III.       Stabilisation of pluralist democracy ………………………………………….... p. 9

      A. The electoral provisions law

      B. Political pluralism

      C. Local self-government

IV.       Consolidation of the rule of law: constitutional reform

       and legislative programme …………………………………………………….. p. 12

      A. A substantial revision of the Constitution

      B. Legislative activities

      i.       Criminal Code

      ii.       Reform of the prison system

      iii.       Law on the Ombudsman

      iv.       Law on NGOs

      v.       Law on the civil service

      C. Functioning of institutions

      i.       The Constitutional Court

      ii.       The judicial system

      iii.       The police

V.       Improving human rights protection …………………………………………... p. 19

      A. Abolition of the death penalty

      B. Detention conditions

      C. Freedom of religion

      D. Military service and conscientious objection

      E. Freedom of expression

      F. The rights of national minorities

VI.       The Nagorno-Karabakh conflict ……………………………………………… p. 28

Conclusion

Appendices

I.       Opinion No. 221(2000) of the Parliamentary Assembly on Armenia’s application for membership of the Council of Europe

II.       Letter addressed by Mr Hovhannisyan, Chairman of the Armenian delegation, to the co-rapporteurs, dated 4 September 2002

III.       Programme of the co-rapporteur’s visit to Armenia (15-18 October 2001)

IV.       Programme of the co-rapporteur’s visit to Armenia (19-23 August 2002)

V.       Council of Europe conventions ratified, signed and not ratified by Armenia.

I.       INTRODUCTION

A.       The monitoring procedure

1. Armenia joined the Council of Europe on 25 January 2001, together with Azerbaijan. Armenia is the young State of an old nation, a young democracy which will celebrate the 11th anniversary of its independence on 21 September 2002.

2. On its accession, Armenia accepted the obligations incumbent on all member states under Article 3 of the Statute: compliance with the principles of pluralist democracy and the rule of law and with the principle of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. At the same time, it entered into a number of specific commitments which it agreed to honour within specified deadlines, and which are listed in Opinion No. 221(2000) on Armenia’s application for membership of the Council of Europe¹.

3.        In application of Resolution 1115 (1997), and in accordance with paragraph 16 of Opinion No. 221, the monitoring procedure was begun with immediate effect from the date of accession. On 7 March 2001, the Committee appointed us as co-rapporteurs.

4.        This report is largely based on the conversations we had and information we obtained during our two visits to Armenia, from 15 to 18 October 2001 and from 19 to 23 August 2002².

5.        Our first visit followed the visit to the three transcaucasian states made a month earlier, from 9 to 16 September 2001, by the President of the Parliamentary Assembly, Lord Russell-Johnston³. Our last visit followed those of other personalities representing the Organisation: Secretary General Walter Schwimmer, from 8 to 10 July, and Luxembourg Foreign Minister Ms Lydie Polfer, Chairman-in-Office of the Committee of Ministers, on 18 July 2001⁴.

6.        We wish to express our gratitude to the Armenian parliamentary delegation for the excellent organisation of our visits. We should also like to thank all those to whom we spoke, as our exchanges of views at every level, including the highest, were uncommonly frank, direct, sincere and constructive, as well as undeniably enabling us to clarify a large number of issues. We also extend our thanks to Mr Paolo Andrea Trabalza, Ambassador of the Republic of Italy in Armenia, as well to Ms Natalia Voutova, Council of Europe co-ordinator for human rights and the rule of law in Armenia, and the Yerevan Office of the OSCE, for their very appreciable assistance during our visits.

B.       The political and economic context

-       accession to the Council of Europe

7.        Accession to the Council of Europe is regarded by the Armenian authorities as their country’s most important political initiative and most significant moral commitment of recent years. During our discussions in the course of our first visit, the Armenian authorities constantly restated their firm wish to honour their obligations and commitments, and their absolute commitment to consolidating the rule of law and stabilising the democratic process in their country. Thus the government and the National Assembly gave us their strongest assurances that the necessary reforms were already in progress, or soon would be, and would be completed within the time limits laid down.

8.        Not a single political party disputed Armenia’s decision to join the Council of Europe⁵. It does seem to us, however - and this came across even more clearly during our second visit - that a number of the people we met, particularly the members of parliament, did not have the right perception of the significance and the scope of the commitments entered into, or the right appreciation of the extent of the reforms that they would have to carry out so that these commitments are honoured; this particularly applies to the abolition of the death penalty.

9.        Under a decree issued on 7 February 2001 by President Kocharian, a committee was set up to monitor Armenia’s commitments to the Council of Europe, to draw up a timetable for the reforms to be carried out and the legislation to be adopted, to co-ordinate and supervise the legislative process and to study the European conventions with a view to their signature and ratification. The committee is chaired by the President himself, and the President of the Constitutional Court, the Deputy Speaker of the National Assembly and the Ministers for Foreign Affairs and for Justice are members.

10.        A similar committee was also set up within the National Assembly, chaired by the Deputy Speaker of the Assembly, with the chairs of the standing committees as members.

11.        The Armenian authorities are receiving expert assistance from the Venice Commission, with which they agreed to a co-operation programme, launched in December 2000.

12.        We have nevertheless found a considerable gap between certain political leaders’ intentions and their will to take action and carry out reform, on the one hand, and the mentalities, aspirations and feelings of the population, on the other. The gap exists in respect of the country’s economic situation, which is the population’s top priority. It is also there in the field of human rights protection, the need for which is not fully appreciated by public opinion, nor indeed by certain politicians.

-       economic situation

13.        A slight improvement has been achieved economically, with GNP rising by 9.6 % in 2001. Armenia nevertheless suffers as a result of the blockade imposed on it by its Turkish neighbour and from its lack of relations with Azerbaijan as a result of the territorial dispute between the two countries. It goes without saying that the Armenian authorities expect a lot from the economic assistance that the European countries and the European Union can provide to them, as well as from their future membership of the World Trade Organisation (WTO).

14.        The country nevertheless continues to experience serious economic and social problems. Energy supply remains the main concern. The population is beginning to feel the effects of the economic recovery, although 51% of the population still live below the poverty threshold, and people fear a simultaneous increase in corruption. In 2001 per capita GNP was US$ 503, and the average monthly wage did not exceed US$ 40.

15.        The level of corruption in Armenia is considered by international observers to be far enough below that of neighbouring states to bear no comparison. The government’s work programme includes a stepping up of the fight against corruption, and an intergovernmental committee chaired by the Prime Minister has been created. The OSCE co-ordinates the activities of the different international organisations concerned. A group of experts was set up early in 2002, under the auspices of the World Bank, to assist the authorities in adopting a detailed strategy against corruption. The strategy was finalized in August last, and the group submitted its final report to the Prime Minister. Draft legislation on corruption is in preparation and has been expertised by the Council of Europe. The future Criminal Code should also contain about twenty articles on corruption and white-collar crime.

16.        However, the situation in this respect did not seem at all satisfactory to us. Armenia has not succeeded in breaking with the habits of the Soviet era: underground economy and corruption. The corruption that reigns in the bodies responsible for enforcing the law – the police and the justice system – is inadmissible. The efforts made by the authorities seem very timid: although there is undeniably a need to tackle corruption at the grass-roots level – among traffic police, for example – it is also urgent to fight the corruption that exists in the highest administrative spheres.

17.        The privatisation of state-owned land and buildings in Armenia and their sale to the highest bidder has revealed cases of personal enrichment. This process leaves the door wide open to allegations of corruption among the highest officers of the state, or in the circles closest to the people in power.

18.        The declaration of income and assets by elected representatives, government members and senior civil servants would be a first step towards greater transparency. The authorities have assured us that just such a step had recently been taken and that the declarations would be made public in 2003.

19.        Finally, the leaders of the country must get to grips with the crucial question of the high migration rate of Armenian citizens. The International Organisation for Migration believes that between 800,000 and one million Armenians have left the country since independence, 680,000 of them between 1992 and 1999. Most of them have settled in Russia or in the other countries of the CIS.

20.        The authorities should obtain an accurate picture of migration thanks to the census held in mid-October 2001, the first population census since 1989. The census results should have been available in June 2002, but the authorities have announced that they will not be ready before July 2003. However, according to official provisional estimates, the country’s population is just over 3 million persons.

II.       SIGNATURE AND RATIFICATION OF COUNCIL OF EUROPE CONVENTIONS

21.        When it acceded to the Council of Europe, Armenia undertook to sign and to ratify several Council of Europe conventions (see paragraph 13.i of Opinion No. 221). These conventions have been very closely examined by the Armenian authorities, first and foremost by the government, and then by the Constitutional Court, which is responsible for considering their repercussions for the Constitution, and lastly by the National Assembly.

22.        Most of the commitments entered into as regards the signature and ratification of Council of Europe legal instruments have already been honoured:

-       when it joined the Council of Europe, on 25 January 2001, Armenia signed the European Convention on Human Rights (ECHR), as amended by Protocols Nos. 2 and 11 thereto, and Protocols Nos. 1, 4, and 7, which it ratified on 26 April 2002; it has signed Protocol No. 6 but has not yet ratified it;

-       it also signed on accession the General Agreement on Privileges and Immunities of the Council of Europe, as well as the protocols thereto, which it ratified within the year, on 25 June 2001;

-       where Council of Europe conventions in the criminal law field are concerned, Armenia signed and ratified the European Convention on Extradition, the European Convention on Mutual Assistance in Criminal Matters and the Convention on the Transfer of Sentenced Persons;

-       Armenia signed and ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its two protocols;

-       Armenia also signed and ratified the European Charter for Regional or Minority Languages, as well as the European Charter of Local Self-Government.

23.       As regards the other commitments relating to the signature and ratification of European conventions, the time limits have not yet expired:

-       the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, signed on 11 May 2001, must be ratified within two years of accession, i.e. by January 2003;

-       the European Social Charter, which Armenia signed on 18 October 2001, must be ratified within three years of the date of accession;

-       the European Outline Convention on Transfrontier Co-operation and the additional protocols thereto, signed on 3 April 2002, must be ratified by January 2003.

24.       It is extremely regrettable that Armenia has been unable to honour the commitment to ratify Protocol No. 6 to the European Convention on Human Rights. The people we spoke to left us no illusions whatsoever in this respect, as the issue had become highly political with the approach of the elections. Because of strong anti-abolitionist opposition in the National Assembly (see below paragraphs 134 et seq.), Protocol No. 6 has not the slightest chance of being ratified before next spring.

25.       On our first visit the constitutional reform in progress was said by a number of the people interviewed to be an obstacle to the honouring of this commitment (see below, paragraphs 58 et seq.). However, when the matter was referred to it by the Armenian authorities, the Venice Commission considered in an opinion adopted on 14 December 2001 that the European Convention on Human Rights and its Protocols could be ratified without any prior constitutional amendment⁶.

26.       During our second visit, we were told that the obstacle to the ratification of Protocol No. 6 was the reform of the Criminal Code. If the protocol were to be ratified before Armenia acquired a new Criminal Code, the death penalties pronounced hitherto would automatically be commuted into 15-year sentences, which is the maximum sentence provided for in the present Criminal Code.

III.       STABILISATION OF PLURALIST DEMOCRACY

27.        The events which occurred in 1998 and 1999 (the resignation of President Ter Petrossian in 1998, the presidential election in 1998 and legislative elections in 1999, both of which were subject to a certain amount of criticism, and the murders committed in the Assembly on 27 October 1999) weighed heavily on the continuation of the democratic process. It therefore seems premature to state that political democracy in Armenia is fully stabilised at the present time. The next presidential and parliamentary elections, scheduled to take place on 19 February and 25 May 2003 respectively, will constitute a test.

28.        The legislative elections of 2003 will be the fourth to be held since independence. Several political parties and political leaders, as well as some new personalities on the political scene, have already started electioneering. It seemed to us during our visits that, for the moment, the political climate was calm, although many issues (capital punishment, trial of the events of October 1999, media freedom, the right to hold demonstrations, etc) were systematically exploited for political purposes.

A.       The electoral law

29.        The National Assembly of the Republic of Armenia has 131 seats (but only 129 members were elected in 1999, and only four of those are women). 56 seats are filled through proportional representation, while 75 are allocated through majority voting in single-member districts.

30.        The electoral law had been adopted in February 1999 and amended in March 1999, just prior to the legislative elections of 30 May 1999. The conduct of these elections nevertheless gave rise to some criticism⁷, such as the fact that Armenia had undertaken

“to remedy the deficiencies of the new electoral law before the next elections, in particular as regards the procedural aspects of the work of the electoral committees and the authorities responsible for drawing up electoral registers” (Opinion No. 221, para.13.iii.i.).

31.        The main criticisms voiced by the international observers concerned the keeping of electoral registers, the guarantees of the independence of the electoral committees, the financing of election campaigns, the participation of servicemen in the vote, the right of refugees to vote and the procedure for the supervision of vote counting.

32.        Under the co-operation agreement with the Venice Commission, the latter made a number of recommendations: first in December 2000, then in April 2002, formulating a more detailed opinion on the draft amendments to the electoral provisions law. Following the adoption of the draft text at first reading in May 2002, the Venice Commission and the OSCE/ODIHR addressed a joint opinion to the authorities inviting them to take their recommendations into account.

33.        The law amending the electoral provisions law was unanimously adopted on 3 July 2002.

34.        We cannot therefore say at present to what extent the Armenian authorities have taken account of the recommendations made by the international observers with a view to remedying the shortcomings of the new electoral provisions law.

35.        The main changes introduced by the new law are an increase in the number of seats allocated through proportional representation (henceforth 56 seats are allocated through majority voting in single-member districts and 75 by proportional representation), and stronger guarantees of the independence of the electoral committees (the central committee, the regional committees and the 56 constituency committees), each of which has 9 irremovable members, 3 of whom are appointed by the President of the Republic and 6 by the 6 political parties represented in the National Assembly⁸.

36.        During our last visit we discussed these changes with the President of the Central Electoral Committee, who assured us that the Venice Commission’s recommendations had been taken into account. All the electoral committees were renewed on 17 August 2002.

37.        The various politicians we interviewed had no specific complaints about the new Code, except for the composition of the electoral committees, where the party in power took pride of place and the smaller parties were underrepresented.

B.       Political pluralism

38.        Political pluralism is a reality in Armenia, a country where political life is undeniably highly active, being based on a large number of movements, be they parties, highly structured and grouping together a large number of supporters, or more recent formations set up around a personality purely for electoral purposes. More than a hundred parties are registered, but only a score of well organised parties operate on a permanent basis.

-       role of the Parliament

39.        The members of the National Assembly are divided into six political factions and three political groups, the leaders and some representatives of whom we met during our visits. However, political life is not bipolar, revolving around a structured majority and opposition. We were even surprised to note the coexistence in the largest parliamentary faction, which theoretically supported the government, of parties belonging to the majority and others belonging to the opposition.

40.        In general the government enjoys a level of political support from the parties which varies according to the nature and substance of the draft legislation submitted to the National Assembly for discussion.

41.        The role of the Assembly seems to be limited to passing laws. The role of parliamentary control over the government and its agencies and departments seems very limited. The Assembly has no effective control over the armed forces or national security, for example. This traditional function of parliament in a democracy must be clearly established in the country’s future constitution.

-       status of parliamentarians

42.        At the last session, in June 2002, the Assembly examined a draft law prepared by the government amending the status of parliamentarians. The debate was reportedly quite stormy and the draft text was sent back to the government.

-       law on political parties

43.        Armenia undertook the commitment

“to adopt, within one year of its accession, a new law on political parties” (Opinion No. 221, para.13.iii.d.).

44.        The law on political parties was adopted on 18 June 2002. It is intended to clarify the legal status, activities, organisation (foundation, dissolution, funding, etc) and obligations of political parties. The Venice Commission examined the draft law in July 2001 and gave an opinion in April 2002.

45.        We naturally had conversations with political leaders about the law. The draft law apparently gave rise to spirited criticism by certain parties. Today, however, our conversations indicate that all the political forces find the law perfectly satisfactory. We are informed that the discussions took place in a consensual atmosphere and that each parliamentary formation had been able to table amendments and obtain the requisite changes.

C.       Local self-government

46.        Upon its accession 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 of Local and Regional Authorities of Europe (CLRAE)” (Opinion No. 221, para.13.iii.h.).

47.        There is no doubt that the Armenian authorities are deeply attached to encouraging local democracy. Wide-ranging constitutional and legislative reform has begun, covering both the territorial structure of the country and the responsibilities of local authorities.

48.        Chapter 7 of the present Constitution, which deals with local self-government, will be significantly changed through the constitutional reform now under way. The territorial structure of the country should be simplified and the local authorities be given greater independence and increased responsibilities.

49.        Several laws are thus necessary to put this large-scale reform into practice and reflect the principles laid down in the future Constitution, in particular a new law on local self-government, a law on the territorial administration of the state, a law on local referendums and a law on the status of Yerevan.

50.        The new law on local self-government, which supersedes the previous law of the Republic of Armenia on local self-government, of 22 July 1996, was adopted on 7 May 2002. It should take full account of the provisions of the European Charter of Local Self-Government and of the recommendations made by the Congress of Local and Regional Authorities of Europe (CLRAE). The draft law was drawn up on the parliamentary initiative of the National Assembly’s legal and state affairs committee, in co-operation with the government and the President’s office, and submitted to the Venice Commission for expert appraisal.

51.        In the opinion of the international observers, this law appears largely symbolic and does not seem to go far enough in extending the powers of the local authorities. It should therefore be amended following the revision of the Constitution.

52.        Several important problems remain unsolved (in particular the question of the dismissal of the mayors or their irrevocability) and for the time being seem not to have found a clear answer in the draft law. It is essential that the principles set out in the law should fully concord with those which will be enshrined in the new Constitution.

53.        The draft law on the territorial administration of the Republic of Armenia will be subjected to a new expert appraisal by the Council of Europe. The Armenian authorities were expecting it to be rapidly adopted, during the autumn, but discussions about it in the government and the National Assembly have fallen behind schedule.

54.        Lastly, the draft law on the status of Yerevan will not be adopted before the constitutional reform is implemented. Article 108 of the future constitution actually deals solely with the status of Yerevan, laying down the main characteristics of the city’s status. One of the main points in need of clarification concerns the status of the Mayor of the city. At present the Mayor is appointed by the President of the Republic and serves as both mayor and governor. The constitution and the law should clearly mention that the Mayor should in future be elected, which in our view is a fundamental guarantee for his or her independence.

55.        The next local elections are scheduled on 20 October 2002. By that date, the legislation governing the powers of local authorities will likely not be finalised.

IV.       CONSOLIDATION OF THE RULE OF LAW: CONSTITUTIONAL REFORM AND LEGISLATIVE PROGRAMME

56.        Our first visit revealed that reforms were well under way. The commitments towards the Council of Europe have been reflected in the past 18 months in sweeping legislative reforms, with a clear determination to implement the reforms adopted effectively and without delay.

57.        It is regrettable, however, that two major reforms – the revision of the Constitution and the adoption of a new Criminal Code – should be taking so long for reasons that are difficult to explain. As discussions stand in the Assembly at present, these fundamental reforms will not be finalised for many months to come, and certainly not before the presidential election.

A.       A substantial revision of the Armenian Constitution

58.        The Constitution of Armenia adopted in 1995 required substantial amendment in the light of the constitutional practice and experience of the last six years and the country’s commitments vis-à-vis the Council of Europe concerning the implementation of certain legal reforms.

59.        A new draft Constitution was thus prepared by the Presidential authorities and presented to the National Assembly in August 2001. Certain provisions have been amended to rid the constitution of inconsistencies with the European Convention on Human Rights and the Protocols thereto, and should help Armenia to honour its commitments, particularly in respect of abolition of the death penalty, guarantees in the event of arrest and detention, respect for individual rights and freedoms and human rights protection mechanisms.

60.        The constitutional reform also aims to achieve a new balance of constitutional powers, with a view to providing stronger guarantees of the principle of the separation of legislative, executive and judicial powers, with proper controls, fostering the coherent division of powers between President, Government and Parliament, notably by clarifying the respective roles of the President and the Prime Minister, and guaranteeing the independence of the judiciary.

61.        The Venice Commission was placed in charge of this highly important expert task and set up a working group on the revision of the Armenian Constitution to examine the draft amendments. At its 47^th plenary meeting on 7 July 2001 the Venice Commission adopted its “report on the revised Constitution of the Republic of Armenia”, in which it welcomes the amendments proposed by the Armenian authorities and formulates further comments as regards the constitutional reform.

62.        Subsequent to the expert report, the new draft Constitution has been under discussion in the National Assembly for several months. Its adoption has fallen considerably behind schedule. The timetable for the reform, which should have been completed by spring 2002, was prolonged in part because the Assembly was simultaneously examining another draft text proposed by the opposition. The alternative text, aimed at establishing a parliamentary system, was the fruit of a compromise between certain parliamentary factions (including the Communist Party of Armenia) and independent members, but it was withdrawn by its authors on 3 April 2002.

63.        Discussion of the new Constitution drafted by the Presidential authorities is on the agenda of the 2002-2003 parliamentary session. The Armenian authorities were reasonably optimistic about the outcome of the process. President Kocharian indicated that a referendum ratifying the amendments to the constitution will be held in May 2003, at the same time as the general elections.

64.        The people we spoke to do not exclude the possibility that the government will have to work hard to sway public opinion in favour of some of the new provisions, particularly the abolition of capital punishment. It should be noted that the draft Constitution can be adopted only if it wins the referendum by an absolute majority of the votes cast and has the support of at least a third of all registered voters. There are evidently forces in the National Assembly willing to fight the new constitution who are perfectly capable of exploiting the events of 27 October 1999 and 11 September 2001 to influence public opinion.

B.       Legislative activities

65.        As we mentioned earlier, the Armenian authorities have planned an ambitious reform programme, mainly with a view to honouring their country’s commitments vis-à-vis the Council of Europe.

66.        A study of the compatibility of Armenian law with the standards enshrined in the European Convention on Human Rights was prepared in October 2000 by a group of independent Armenian experts in co-operation with the Council of Europe. Without being exhaustive, it covers a whole series of amendments needed to bring Armenia’s legislation into line with the Convention.

67.        According to the international observers we met, adopting new laws is a relatively simple process. The government can generally count on political support in the National Assembly, except on criminal law reform, which gave rise to lengthy and heated debates over the abolition of the death penalty. However, practical implementation of the reforms adopted constitutes a real problem, inter alia because the administration has not yet shaken off the cumbersome habits and red tape inherited from 70 years of communism.

68.        Several laws referred to in the commitments were adopted during the 2001-2002 session of the National Assembly. Draft laws related to some other commitments are on the agenda of the 2002-2003 session. It is likely, however, that others, such as those concerning criminal law and the Ombudsman, had to be deferred and, upon the wish of the authorities, will not be adopted before the entry into force of the new Constitution.

69.        We hope that by next spring the Armenian authorities will have made the necessary amendments to the Constitution and that the country’s honouring of its commitments will not come up against any more obstacles of this nature in the future. It would be quite unacceptable for certain reforms, such as the introduction of an alternative to military service, to be delayed because they require further prior amendment of the Constitution.

i.       Criminal Code

70.        When it joined the Council, Armenia undertook

“to adopt, within one year of its accession, the second (specific) part of the Criminal Code, thus abolishing de jure the death penalty and decriminalising consensual homosexual relationships between adults” (Opinion No. 221, para. 13.iii.a.).

71.        It should be noted that the general part of the new Criminal Code was adopted in 1999. The second part was adopted at first reading and was expected to be adopted finally during the 2001-2002 parliamentary session. However, following the initiative of a group of parliamentarians and with the Council of Europe’s agreement, the Armenian authorities decided to revise the whole Criminal Code once again.

72.        On 20 June 2002 the National Assembly adopted the draft Criminal Code at first reading. The draft text was then presented to the government and transmitted to the Council of Europe for expert appraisal.

73.        The authorities considered the adoption of the Criminal Code at first reading to be a major step forward and a first step towards abolition of the death penalty.

74.        We do not share their enthusiasm. In deciding that "The provisions of this Code on the abolition of death penalty are not extended to persons who committed murder with aggravating circumstances, terrorist acts, or rape on a minor girl before this Code came into effect", the National Assembly chose not to honour its commitment to abolish the death penalty without exceptions or reservations.

75.        The draft Code, as adopted at first reading, was sent to the Council of Europe for expert appraisal. The appraisal will be completed early in October 2002. The authorities have undertaken, during the second reading of the text, to take the Organisation’s recommendations into account. We are convinced that the National Assembly could adopt the revised Criminal Code at final reading during its autumn 2002 session, which ends on 9 December 2002, while fully respecting these recommendations. Any deferral of the reform beyond the present session would have serious consequences.

-       homosexual relations

76.        Under Article 116 of the Criminal Code homosexual relations between men are punishable by up to five years’ imprisonment. The new draft Code, adopted at first reading, provides for the decriminalisation of homosexual relations between consenting adults, maintaining the possibility of prosecution only in the event of rape.

77.        The Prosecutor General acknowledges that since 1994 48 people have been convicted under Article 116 of the Criminal Code. In 1999 15 people were prosecuted, followed by 6 in 2000. There appear to have been no prosecutions since then, except in cases of rape.

-       administrative detention

78.        In conjunction with the revision of the Criminal Code, we consider it essential that the Armenian authorities clarify the role and purpose of administrative detention. This provision of Article 180.1 of the administrative Code is a remnant of communist-type justice. It allows the judge, in simple summary proceedings, to order up to 15 days’ detention. It seems to be used all too readily, for minor offences or even where no offence has been committed; if anything, judges seem to hand down such sentences merely to play along with the police. As it causes a deprivation of liberty, it is quite unacceptable that the people thus detained have no access to a lawyer⁹.

79.        On 14 May 2002 a few dozen demonstrators hostile to the government and to President Kocharian were arrested and immediately sentenced, some to fines and others to detention. The fact that the demonstrators allegedly continued their march off the agreed route after the demonstration was broken up by no means justifies a disproportionate reaction.

80.        When we visited the Minister of Justice we urged him to instruct judges to put a stop to this practice. He informed us that administrative detention would be reformed when the Administrative Code was revised.

-       witness status

81.        A serious shortcoming in the Criminal Code concerns witnesses heard in the course of investigations, who do not even enjoy the same rights as suspects, such as the right to have a lawyer present. This causes malfunctions. According to the NGOs many people are brought in by investigators as mere witnesses then subjected to pressure designed to make them confess. The revised Criminal Code should clearly provide for any person heard by the police as a witness to have the right to be assisted by a lawyer if she or he so wishes.

ii.       Reform of the prison system

82.        Armenia also undertook

“to adopt, within six months of its accession, the law on the transfer of responsibility for the prison system, including pre-trial detention centres and work colonies, from the Ministry of the Interior and the Ministry for National Security to the Ministry of Justice, thus ensuring the thorough reform and demilitarisation of the system, and to ensure the effective implementation of this law within six months after it has been adopted, except as regards the effective transfer of the pre-trial detention centres and work colonies, which must be implemented within one year after the law has been adopted” (Opinion No. 221, para. 13 iii.f.).

83.        The transfer of responsibility for the prison system from the Ministry of the Interior to the Ministry of Justice is one of the most important commitments and one of the most difficult reforms to implement. A package of eight laws, including amendments to the existing criminal legislation, is to be examined and adopted in the National Assembly. The process was officially set in motion on 1 October 2001, following a decision of principle taken by a Decree of the President of the Republic in September 2001.

84.        The Presidential Decree provided for the process to be completed within two months. The transfer in fact began on 22 October 2001; the first phase (demilitarisation of the staff and move to civilian status, takeover of budget, salaries and pensions) should be completed in January 2002; the second phase (effective transfer of sites) should be completed by mid-2002.

85.        Fifteen sites, ie one prison (housing some 170 detainees convicted of serious crimes), 5 pre-trial detention centres, 8 work colonies (including one for women and juveniles) and one prison hospital, housing 4,500 detainees in all, are concerned by this reform (see also paragraphs 149 et seq. on detention conditions).

86.        Negotiations are apparently still in progress, however, concerning the transfer to the Ministry of Justice of the temporary detention centre run by the Ministry of National Security. The Vice-Minister of National Security was very evasive on this subject and gave us no indication of any time frame. He seemed to consider the transfer virtually impossible as the detention centre was housed in the Ministry building itself.

iii.       Law on the Ombudsman

87.        Armenia also undertook

“to adopt, within six months of its accession, the law on the ombudsman” (Opinion No. 221, Para. 13 iii. b.).

88.        The draft law on the Defender of Human Rights has been examined by the Venice Commission. At its 47^th meeting, in July 2001, it adopted an opinion and officially asked the Parliamentary Assembly to agree to an extension to allow the Armenian authorities to enact this law following completion of the constitutional reform process.

89.        The timetable for discussion and adoption of the law on the Defender of Human Rights by the National Assembly is conditional on the prior adoption of the new Constitution insofar as several provisions of the latter (Articles 18, 83.4 and 101.8) concern the Defender of Human Rights.

90.        However, bearing in mind that the constitutional provisions thereto are very brief, it is for the law on the Defender of Human Rights to determine in detail the procedure and conditions of his appointment, his terms of reference and the guarantees attached to his duties, including the principle of his appointment by the National Assembly.

91.        As the examination of this draft law has fallen behind schedule, the Venice Commission now considers that the Assembly should discuss it without delay and adopt it rapidly, it being understood that the Defender of Human Rights could be appointed as soon as the new Constitution comes into force. The draft law will accordingly be presented to the Assembly at its autumn session. A further delay in the passing of this law would hardly be admissible.

iv.       Law on NGOs

92.        Armenia further undertook

“to adopt, within one year of its accession, a new law on non-governmental organisations” (Opinion No. 221, para. 13 iii. e.).

93.        The law was adopted on 24 December 2001. The draft law was examined by the Council of Europe’s experts in May 2001. The authorities informed us that the final draft has now been discussed by the government, the National Assembly and the national and international NGOs. The NGOs felt that the consultation had been a mere formality. We do not know if they are satisfied with the final text.

94.        There are more than 2000 NGOs in Armenia according to the Ministry of Justice, which is responsible for the official registration of associations and NGOs. However, a number of these NGOs are simply fronts for business and even political activities, which is why this law should be enacted promptly.

v.       Law on the civil service

95.        Armenia also committed itself.

“to adopt, within one year of its accession, the law on the civil service” (Opinion No. 221, para. 13 iii. g.).

96.        This law was passed on 4 December 2001. The draft law on the civil service was submitted for expert appraisal to the Council of Europe (the experts’ comments subsequent to this initial appraisal were sent to the authorities in September 2001) and to the Venice Commission, which adopted an opinion at its meeting on 19 and 20 October 2001.

97.        The draft law raised controversies, in particular as regards the duties incumbent on civil servants. According to the current Constitution, civil servants enjoy the same rights as any other citizen, including the right to strike, the right to demonstrate, freedom of expression, and the right to be a member of a political party or a trade union. It was therefore foreseen to introduce restrictions to these rights, in particular by an obligation of restraint and by the interdiction to cumulate functions.

98.        Moreover, referring to a presidential decree of May 2000 giving the President of the Republic the power to appoint all high-ranking officers and senior civil servants, representatives of the political opposition criticised what they saw as a ploy by those in power to place their henchmen in the highest offices in the land. They also accused he President of recently granting himself the power to punish and demote high-ranking officers. There were no such complaints from other quarters.

C.       Functioning of institutions

99.        The reforms under way should also improve the functioning of the legal and judicial institutions. Chapter 6 of the new Constitution currently under discussion concerns the judiciary. The resulting redefinition of the powers of the Constitutional Court, the Judicial Council and the State Prosecutor’s Office should definitely help to strengthen the independence of the justice system, provided, of course, that the initial draft is not substantially altered during the parliamentary debate.

i.       The Constitutional Court

100. 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 No. 221, para. 14 ii.)

will be honoured as a result of the constitutional reform process.

101. The Constitutional Court is one of the institutions concerned by the constitutional reform in progress, particularly as its powers will be substantially extended, as will access to the court (see Articles 100 and 101 of the draft Constitution).

102. With the establishment of the right of individual application (Article 101.6 of the draft Constitution), all citizens will be able to apply to the Constitutional Court to defend their rights. Furthermore, as the draft Constitution stands at present, the President of the Republic, the government, local authorities, courts, the Prosecutor General and, more interestingly, the Ombudsman, as well as one-fifth of the members of the National Assembly (as opposed to one-third at present) will be able to refer cases to the Constitutional Court.

103. In addition to verifying the constitutionality of laws and treaties prior to ratification, the Constitutional Court will be responsible for verifying the legality of regulatory acts (presidential decrees and decisions of the government, the Prime Minister and local authorities).

104. This reform will of course mean major changes in the modus operandi of the Constitutional Court. We spoke to its President, who was confident that the judges would be able to adapt their working methods to the expected increase in applications, and that the court’s material and human resources would be strengthened.

105. Considering the rigour the Court has demonstrated in its work from the outset, this fundamental reform will no doubt help to improve the rule of law in Armenia.

ii.       The judicial system

106. 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 No. 221, para. 13 iv.a.).

107. The functioning of the justice system is based at present on about a hundred laws passed in 1998-1999: the new Criminal Code (the first, general, part of which was adopted in 1999), the new Code of Criminal Procedure, the new Civil Code, the new Code of Civil Procedure, the law on the organisation of the judiciary, the law on the status of judges, the law on the public prosecutor’s office, the law governing the practice of law, etc.

108. However, the applicable legislation is still patchy and lacking in coherence. The reform of the justice system being considered a priority by the Armenian authorities, several laws are in the process of being revised or enacted. Certain provisions of the Code of Criminal Procedure, in force since 1999, need amendment in keeping with the proposals made by Council of Europe experts.

109. It is therefore premature for the co-rapporteurs to comment on reforms which have not yet been completed.

-       Independence of justice

110. Many of the people we spoke to voiced doubts as to the smooth functioning of the judicial system: NGOs, MPs and lawyers clearly intimated that there was no independence of the justice system and that judges were “under the orders of those who appointed them” or paid them¹⁰. According to the NGOs 90% of judges are corrupt. The judiciary is allegedly the most corrupt sector in the country. The Minister of Justice himself openly acknowledges the magnitude of the problem. Thus far, however, only one judge has been punished for corruption.

111. This situation undermines the very principle of equal access to justice for all citizens.

112. The independence of justice should be clearly guaranteed by the Constitution (see Article 94 of the draft Constitution). Similarly, several provisions will strengthen the constitutional status of judges, adding the principle of personal immunity to those of security of office and independence in the performance of their duties.

113. Guaranteeing the independence of justice in practice, however, is less a matter of adopting new laws than of improving the daily functioning of the justice system: limiting the role of the public prosecutor, better training for judges, fighting corruption, increasing material resources, etc. The question of the appointment of judges is of the essence here (see paragraphs 116 et seq. below).

114. The Minister of Justice also thinks that the opening of a training centre for judges early in 2003 will be a step in the right direction. The Council of Europe fully supports the initiative to create a unique training centre for judges, which will operate preferably under the authority of the Judicial Council, and not the Ministry of Justice, as scheduled currently.

115. The Council of Europe is ready to provide the Armenian authorities with all the assistance they need and has already planned a number of activities in this field (see Appendix III, 2001 and 2002 co-operation programme). To date, the Armenian authorities have not followed-up proposals for assistance in this field.

-       Judicial Council

116. The commitment “to reform the Judicial Council in order to increase its independence within three years of accession” (Opinion No. 221, para. 14 iii.) is in progress.

117. This institution, which has the power to appoint magistrates and make decisions affecting their careers, is also given a major overhaul in the new draft Constitution. Its role is fundamental in guaranteeing the effective independence of the judiciary. Judges are appointed by the President of the Republic at the proposal of the Council. Until now the President had the power to dismiss judges, but the constitutional reform could transfer this power to the Constitutional Court. The NGOs nonetheless point out the considerable influence of the Ministry of Justice over the appointment of judges.

118. Under the new Constitution the Judicial Council will be composed of 7 judges elected by an assembly of judges for 3 years by secret ballot, plus 3 experts appointed by the President of the Republic. The President of the Republic, who used to chair the Council, and the Minister of Justice and the Prosecutor General will no longer be members.

-       The Public Prosecutor’s Office

119. The Public Prosecutor’s Office was reformed in 1999. Today this is the legal institution least affected by the reforms in progress. According to the new constitution, the Procuracy would be part of the Judicial power, but its role and functions remain rather ambiguous¹¹. According to the NGOs and lawyers we met, however, the public prosecutor continues to play a predominant and excessive role in the judicial process.

-       The lawyer’s profession

120. From a legal point of view the profession is governed and protected by the law on the legal profession enacted in 1998. A code of ethics is in preparation. In practice, however, it would seem that much remains to be done if lawyers are to be given proper training to a truly professional standard.

121. In the course of our visit we were surprised at the total lack of consideration, credibility and confidence enjoyed by lawyers in Armenia. The detainees we met who were awaiting trial were particularly wary and even highly critical, explaining that the lawyers were so bad and uncaring that they preferred to defend themselves.

122. This state of affairs tends to render the provisions adopted by the authorities on the official assignment of lawyers and legal aid, with a view to providing free legal assistance, quite ineffective. It also shows how little prisoners know about their own rights.

-       The trial following the events of 27 October 1999

123. When Armenia joined the Council of Europe the Parliamentary Assembly asked the authorities “to ensure that parliament is kept fully informed about the investigation into the events of 27 October 1999, in conformity with the existing legislation” (Opinion No. 221, para. 14 i.).

124. The trial began in February 2001 and is still in progress. For observers it is a test case to establish the real degree of independence of the judiciary, about which some NGOs voiced doubts. The trial is dragging on; the large number of plaintiffs (over 80) and the complexity of the case are not the only problem. The hearings should spill over into next year.

125. The trial is being given extensive media coverage (with more than 60 journalists accredited) and members of parliament informed us that they were free to attend the hearings. A special parliamentary committee has been set up to follow the progress made in the investigation and the court proceedings. The MPs consider that the investigation has been transparent.

126. The victims’ families we met also agreed that their rights as plaintiffs had been respected in the proceedings. They regretted, however, that since the television channel A1+ went off the air media coverage of the trial has been more irregular.

127. This trial is above all the trial of capital punishment, as some of the accused could very well be sentenced to death. In view of the allegations of all sorts that have been relayed by the NGOs and the media over the last two and a half years (defendants tortured, botched investigation, biased trial, disappearing witnesses, etc), we thought it advisable to meet the defendants in person. We wish to thank the authorities for allowing us to meet two of them, Nairi and Karen Hunanyan, during our second visit. In view of the commitments Armenia has contracted, we owed it to them to hear their version of the facts concerning all these allegations, their detention conditions and the conditions in which the investigation and the trial were being conducted.

128. Our private conversation with the two defendants took place in a very calm atmosphere. They were very measured in their statements. They confirmed that they had systematically and daily been subjected to brutality and to physical and psychological threats and violence during the preliminary investigation, especially between March and June 2000.¹² Their remarks concerning their present detention conditions seem justified¹³. We brought the matter up with the authorities.

iii.       The police

129. The law on the police was adopted and promulgated in May 2001, in spite of the criticisms voiced by Council of Europe experts, as regards the powers of investigation and arrest given to the police. The authorities pointed out that this was standard legislation for CIS countries and that its adoption marked a big step forward. According to the NGOs the entry into force of this law has had very little effect on the functioning of the police and the behaviour of police officers: brutality and ill-treatment during police custody and extortion (in respect of homosexuals for example) remain commonplace.

130. International observers acknowledge that efforts have been made recently to “clean up” the police, where corruption is rife. A hundred-odd officers appear to have been dismissed according to the international observers. The Minister of the Interior admits having dismissed 24 police officers.

131. It should be noted that the Law of 12 December 2001 on amendments to the Criminal Procedure Code, which will come into force on 1^st January 2002, provides for the reduction of the length of police detention from 96 to 72 hours, which is still too long by European standards.

V.       IMPROVING HUMAN RIGHTS PROTECTION

132. During our visits, we felt the need to firmly remind those with whom we spoke of some of the fundamental values upheld by the Council and its Parliamentary Assembly, in particular the need for Armenia to abolish the death penalty and to put an end to the imprisonment of Jehovah’s Witnesses who, as conscientious objectors, refuse to do military service.

133. The authorities also mentioned the importance they attached to the work of the Presidential Committee on Human Rights. In its 2001 confidential annual report to the Prime Minister it apparently denounces a number of violations and abuses, in particular in prisons and detention centres and in the armed forces.

A.       Abolition of the death penalty

134. This is a highly sensitive topic in Armenia and doubtless the most difficult commitment for the country to comply with.

135. Armenia has observed a de facto moratorium on the death penalty since 1991 and although the courts have continued to hand down death sentences (9 since January 2000), no-one has been executed “in Armenia”¹⁴. Upon accession, Armenia signed Protocol no. 6 to the European Convention on Human Rights. At 27 May 2002 there were some 39 prisoners under sentence of death, all being held in Nubarashen prison. The authorities assured us that their detention conditions had been improved. As we did not meet them during our visits, we are not able to comment further.

136. Abolishing the death penalty in Armenian domestic law would require amendments to both the Criminal Code and the Constitution (Article 17 of the 1995 Constitution), in the interests of clarity and consistency of the law. Both reforms, as mentioned above, are currently before the National Assembly. According to the Armenian authorities, ratification of Protocol No. 6 is conditional on these reforms being made.

137. During our first visit, the Speaker of the National Assembly, Armen Kachatryan, and the majority of the members of the Assembly we met, confirmed in unequivocal terms their opposition to the death penalty. On our second visit, however, the assembly members we spoke to were extremely pessimistic about the ratification of Protocol No. 6 and the adoption of the new Criminal Code because of the pressure of public opinion: no reform is expected before the elections.

138. Other senior figures, first and foremost President Kocharian, whose abolitionist views are well known and who, on that account, is undoubtedly taking a political risk, were more confident that Armenia would be able to honour this commitment too.

139. The tragic events of 27 October 1999 which took place at the Parliament and which cost the life of 8 senior figures including Vazgen Sargsyan, the then Prime Minister, and Karen Demirchyan, the then Speaker of the National Assembly, had such an effect in people’s minds and made such an impact on public opinion that the majority of parliamentarians themselves refuse for the time being to abolish the death penalty, awaiting the outcome of the trial of the perpetrators of the atrocity.

140. Several members of the National Assembly told us they were prepared to ratify Protocol no. 6 if the Council of Europe and the Parliamentary Assembly agreed to consider the tragedy of 1999, a highly emotionally charged event, as an exception to the application of the death penalty and to put back the deadline for ratification of Protocol no. 6 to after the trial had been completed. Only two parliamentary factions defend a clear abolitionist position.

141. Clearly, membership of the Council of Europe can brook no exception on this point.

142. The argument is all the more refutable insofar as the authorities, including the members of the Assembly, agreed to abolish the death penalty in spring 2000, i.e. well after the tragic events in question.

143. Armenia must today demonstrate that it fully shares with the other members of the Council of Europe the principles dearest to our Organisation. Armenia’s elected representatives have a clear choice to make between fostering the values of a democratic, humanist and tolerant Europe or giving way to demagogy by pandering to popular resentment.

144. We call on the Armenian authorities not to defer any longer the ratification of Protocol No. 6 and the adoption of the amendments to the Constitution and of the new Criminal Code, and to show genuine determination by abolishing the death penalty without delay. Popular feeling should not be a reason to delay essential reforms which were freely agreed to and accepted on joining the Council. A crime is a tragedy irrespective of whether it concerns the death of a prime minister or an unknown person.

145. During our last visit, we took 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, and of the assurance given to us by President Kocharian that he will sign, once the Criminal Code has been approved, a decree commuting the sentence of the persons currently sentenced to death to life imprisonment.

146. The Assembly is the institution where laws are passed in the country’s interest, not where the feelings of the street are voiced. If most politicians were not tempted to exploit these tragic events and the pain of the victims’ families for purely electoral purposes, the Assembly could conduct a useful debate on these fundamental reforms and the justice system would be in a better position to judge such acts in all serenity.

147. Lastly, if the verdict of the trial of the alleged perpetrators of the events of 27 October 1999 were given before the amendment to the Criminal Code and ratification of Protocol no. 6, and death sentences were handed down, this would doubtless have a disastrous effect on international opinion.

148. Since the Armenian authorities will have to show a degree of political courage to defend this principle with the public, they could perhaps take the initiative and seek to promote with immediate effect Protocol No. 13 on the abolition of the death penalty in all circumstances. The Armenian authorities could take the opportunity currently available to them to reform the Constitution and the Criminal Code in order to incorporate into domestic law not the provisions of Protocol No. 6 but those of Protocol no. 13 which has been open for signature since May 2002, and totally abolish the death penalty including in times of war or imminent danger of war.

B.       Detention conditions

149. Since 2001, the Armenian authorities have clearly made an effort to improve detention conditions and solve the problem of prison overcrowding. From our point of view there is no denying the progress made, especially since the transfer of the prison administration to the Ministry of Justice.

150. On the legislative front, the Minister for Justice has been responsible for three major laws: the law on the prison system (already enacted), the law on the arrest and detention of individuals and the law on the enforcement of sentences (both currently before the National Assembly). These three laws, which constitute a major advance, have been appraised by the Council of Europe’s experts. The provisions on sentences in the new Criminal Code have been revised in order to limit the imprisonment of offenders as far as possible.

151. However, it was primarily President Kocharian’s decree of 13 June 2001 granting an amnesty which was responsible for the significant reduction in the prison population.

152. Prior to the amnesty there were around 6,000 prisoners. The presidential decree granting an amnesty to almost 2,100 prisoners, 1,250 of whom were immediately released, brought the population down to around 4,500 (930 on remand and 3,500 convicted prisoners). It should be noted that the amnesty did not cover those convicted of serious crimes, murders or desertion.

153. There is a relatively low level of crime in Armenia: 12,000 crimes and offences (including 121 murders) were committed in the year 2000. In 2001 the number stood at 8,100 as at 1 October.

154. During our first visit, we went to a work camp – the Kosh prison colony – and to pre-trial detention centre no. 1 at Nubarashen, which houses some 700 remand prisoners. We returned to Nubarashen on our second visit.

155. In view of the deplorable and alarming situation prevailing in prisons in many former Soviet countries – overcrowding, sickness, malnutrition, dilapidated and unhygienic premises, etc – we were rather reassured to find that detention conditions in the two prisons visited were – in relation to the average standard of living and the country’s economic situation – adequate. In the Nubarashen facility, the cells were well-lit, ventilated and clean; they were roughly 20 m² in size and designed to accommodate up to 10 persons, but occupied by no more than eight. Inmates were allowed to wear their own clothes and the food provided was supplemented by parcels sent by families. Most detainees have radio or television.

156. The Ministry of the Interior has in the past taken a whole series of measures to improve detention conditions. However, we had the impression that not all of these measures had been put into practice and that detention conditions could be significantly improved by simple measures, beginning with allowing prisoners to go outdoors at least one hour per day. Several inmates at Nubarashen told us during our first visit in 2001 that they were entitled to only one to two hours of exercise per week. Contact between prisoners held on remand and their families was prohibited while investigations were in progress and only the public prosecutor could authorise visits.

157. On our second visit to Nubarashen we noted marked improvements: detainees has the right to one hour’s exercise every day; their families could visit them twice a month and they could receive up to 70 kg of parcels from their families per month. They could also make telephone calls (only 2 of the 680 detainees did not have the authorisation of the judge or the public prosecutor to make telephone calls).

158. At the Kosh prison colony we were astonished to discover - and this is not the least significant of the paradoxes noted - that prisoners had absolutely nothing to do all day, spending all their time walking about in the dormitories or outdoors, reading or talking. Moreover, the authorities confirmed to us that not all centres were equipped with a fully functioning workshop and that the vast majority of prisoners in fact had nothing to do. As these are young people who could be very useful to society, the fact that they are not given anything to do is particularly shocking. The authorities told us that with the transfer of prisons to the Ministry of Justice, the work colonies would be converted into rehabilitation centres and efforts made, in line with the available financial resources, to develop production activities.

159. It was the state of the medical facilities that we fond most worrying. Only limited investment is needed to improve the medical care provided to prisoners. Although medical records seem to be better kept, there is no systematic registration and examination of detainees upon arrival. Detainees with health problems do not always receive adequate treatment; medicinal drugs are scarce and often past the use-by date. The X-ray machine in Kosh was out of order and the one in Nubarashen was, to all appearances, rarely used. Worse than that, the operating theatre in Nubarashen was run down and completely insalubrious. Yet 14 operations were performed there in 2001, in contempt of the most elementary rules of hygiene.

160. Some categories of detainee deserve special attention, particularly those who suffer from serious psychological disturbances or declared diseases (tuberculosis, AIDS). It is regrettable that they have to wait until they are sentenced and transferred to the prison hospital before they receive proper treatment, for which there is no provision in the remand centre.

161. The Minister for Justice fully agrees with our remarks. The situation is slowly improving. Efforts have been made to renovate and refurbish the prison hospital as part of the International Committee of the Red Cross’s anti-tuberculosis programme. But efforts to supply modern equipment are hampered by the lack of financial means.

162. With regard to Armenia’s commitment to “co-operate fully with NGOs in ensuring that the rights of prisoners and conscripts are respected”, (Opinion no. 221, paragraph 13.iv.c), some of the NGOs we met confirmed that they were allowed to visit while others said that they had only limited access to prisoners held on remand.

163. The International Committee of the Red Cross also informed us that it was able to co-operate appropriately with the authorities, in pursuance of an agreement signed in 1996 authorising it to have free access to all the prisons and pre-trial detention centres coming under the responsibility of the Ministry of the Interior and the Ministry of Defence. In contrast, the ICRC had no access to police stations, where allegations of brutality and ill-treatment were the most frequent.

164. With regard to the commitment “to institute, without delay, a follow-up procedure which conforms to Council of Europe standards to complaints received on alleged ill-treatment in police custody, pre-trial detention centres, prisons and the army, and to ensure that those found guilty of such acts are punished in accordance with the law” (Opinion no. 221, paragraph 14 iv), the information from NGOs clearly indicates that brutality and ill-treatment continue to be inflicted in the army and in detention centres, although the number of cases reported had decreased considerably.

165. As Armenia is now Party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, from now on the CPT experts will be responsible for making any necessary recommendations to the authorities.

C.       Freedom of religion

166. Upon accession, Armenia undertook

“to ensure that all churches or religious communities, in particular those referred to as “non-traditional”, may practise their religion without discrimination” (Opinion no. 221, paragraph 13.iv. b).

167. The question of religious freedom is of particular importance in a country which, like all of the former Soviet countries, has seen a multitude of new churches and religious faiths gain ground over the last ten years. We spoke about this with Mgr Derderian who received us in the absence of His Holiness Garegin II, Catholicos of all Armenians, and with representatives of other faiths.

168. The Armenian Apostolic Church occupies a specific position in the country. By incarnating the Armenian identity and culture throughout the history of the Armenian people, it plays an undoubted stabilising role for the state and society. The year 2001 marked the 1700^th anniversary of Christianity in Armenia.

169. Article 7.1 of the new Constitution will, however, clearly set out the secular nature of the Armenian state: “The Church in the Republic of Armenia shall be separate from the state”, although it recognises “the historically exceptional role of the Armenian Apostolic Church”.¹⁵

170. Freedom of religion is guaranteed by Article 23 of the present Constitution on freedom of thought, conscience and belief (Article 23 of the draft Constitution). Article 7.1 of the draft Constitution provides in fine that “The freedom of activities of all the religious organisations operating in the manner defined by law shall be guaranteed in the Republic of Armenia”. However, it is stated that freedom of belief may be restricted by the law for reasons relating to national security, the preservation of public order, the prevention of crime, and the protection of public health and morality. We hope that these restrictions will be rigorously interpreted and not used in one way or another against the activities of certain faiths.

171. Under the 1991 law on freedom of conscience and religious organisations, the latter must be officially registered. A short while ago, the Ministry of Justice assumed responsibility for registration, taking over from the state committee for religious affairs, which was dissolved in March 2002. A new religious Council was formed in August 2002 and its composition seems to have triggered some criticism.¹⁶ In the year 2000, 14 religious organisations were officially registered at national level (and more than fifty in all). During our visits we met representatives of 11 of these organisations and representatives of the Jehovah’s Witnesses.

172. The Jehovah’s Witnesses, who claim to have 7,500 members, are the only major religious organisation not registered to date. Their application for registration was refused on two occasions – in November 1995 and then in May 2000. The authorities told us that several provisions in the organisation’s statute were contrary to the Constitution and Armenian legislation, in particular those relating to civic duties. Negotiations between the authorities and the Jehovah’s Witnesses are, however, underway in order to find a compromise. So far, the matter has never been brought to court. The Jehovah’s Witnesses representatives we met on our second visit appeared reasonably optimistic about the outcome.

173. However, these same authorities are at a loss to find an appropriate response to the many instances, as regularly reported by NGOs, of hostility towards, and in some cases violence against Jehovah’s Witnesses¹⁷ and, occasionally, members of other religious communities, accused of excessive proselytising, which allegedly poses a threat to the foundations of the family and society.

174. At the same time, Jehovah’s Witnesses are subject to considerable pressure from the judicial authorities and it is clear that the public prosecution service acts with dubious zeal against them.

175. The case of Levon Markaryan, one of the leaders of the Jehovah’s Witnesses, is without doubt the most revealing. Mr Markaryan was prosecuted and tried this year under Article 244 of the Criminal Code for “offences against the person” ¹⁸. The Jehovah’s Witnesses complain of undue judicial zeal, denounce the public prosecutor’s single-mindedness and fear that every one of them could be prosecuted and convicted on the basis of this provision of the Criminal Code which is a relic of the communist era. In September 2001, the court of first instance found him not guilty; the Court of Appeal confirmed that ruling, and in April 2002 the Supreme Court dismissed public prosecutor’s appeal.

176. Another religious organisation, the Church of Jesus Warriors, established in Armenia since 1992, was also refused for registration. The female pastor of the Church in Yerevan, Shogher Khachatryan, was arrested on 17 July 2001 and remanded in custody for three months. On 13 July 2001, the police confiscated the Church’s property. Because of a lack of time, we were unable to raise this case with the authorities during our visits. The Krishna movement, which was registered in 1997, has apparently not had its registration renewed this year.

177. It is clear that the Armenian authorities share with the Apostolic Church a desire to preserve the religious tolerance which undoubtedly exists in the country and to encourage peaceful co-existence with the other more minority faiths. Only 2-3% of Armenians belong to these religious minorities.

178. The representatives of the various faiths confirmed that the different churches lived in harmony and encountered no discrimination in carrying out their cultural and other activities. Legislation, primarily regarding taxation, was advantageous. It was relatively easy to acquire or construct a place of worship.

179. Certain faiths, in particular the Catholic and Jewish faiths, told us that it was generally possible to give religious instruction in schools. However, they were unable to send chaplains to the regiments. The Yezidi community complained that for financial reasons and due to the dissemination of the community among several villages, it could not organise religious or languages courses in schools.

180. The only complaint levelled at the authorities was the excessively long time it has taken the bureaucracy to return the land and property confiscated during the Communist era to the churches concerned. The Catholic Church has apparently recovered only 10% of the property it owned before the Soviet era. The Jewish community also referred to a problem of recovering former synagogues and ancient manuscripts.

D.       Military service and conscientious objection

181. In our view it is essential for Armenia to take more active steps to honour its commitment

“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 no. 221, paragraph 13.iv.d).

182. This commitment is clearly linked to the question of the dozens of Jehovah’s Witness conscientious objectors who have been tried and sentenced to prison in recent years. But it goes far beyond that and, without calling into question the country’s defence policy, it is aimed at refocusing the role and function of national service and making changes to the conditions under which it is carried out.

183. Since 1997 a hundred-odd young Jehovah’s Witnesses have been sentenced under Article 75 of the Criminal Code, or Article 255, to prison sentences ranging from one to three-and-a-half years. The Principle State Prosecutor told us that 52 conscientious objectors had been prosecuted in the last two years. There were apparently 23 Jehovah’s Witnesses currently in prison for refusing to carry out their military service on religious grounds. Two more were awaiting trial.

184. Thirty-seven young Jehovah’s Witnesses had been released following the presidential amnesty of June 2001. However further arrests and convictions had occurred subsequently. 20 of the 23 young people currently in prison were convicted after the presidential amnesty. Three of them had been amnestied in 2001 but subsequently convicted again.

185. During our visits we were able to speak to those of them who were detained in Nubarashen prison and the Kosh prison colony, where they are now grouped together.

186. The condemnation and imprisonment of these young people do not seem to be in keeping with the principles safeguarded by the Council of Europe.¹⁹ Some young objectors have even been convicted a second time of the same offence after having served an initial sentence.

187. NGOs have also reported allegations of ill-treatment and, in some cases, violence inflicted upon young Jehovah’s Witnesses refusing to do military service by the police when they are arrested or the army when they are assigned to a unit. However, the young Jehovah’s Witnesses we met told us they had not been ill-treated and confirmed that they had been offered the possibility of being assigned to civilian tasks in the armed forces rather than to an armed unit, an offer they had all refused.

188. According to the Armenian authorities, all conscientious objectors refusing military service in Armenia are Jehovah’s Witnesses. We were told by the NGOs that other young people who were not Jehovah’s Witnesses had also been given prison sentences not for refusing military service as conscientious objectors but for desertion.

189. We do not have any statistics on the number of young people who desert each year or who refuse their posting to a unit (compulsory conscription being one of the reasons hastening the departure abroad of young graduates), but it is clear that many young people would like to avoid military service. Such a situation should lead the authorities to speed up their reappraisal of national service and promote an alternative community service. Instituting such a reform would doubtless encourage young people to remain in their country.

190. Those with whom we spoke, referring to the regional situation and tension 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. Many of the parliamentarians we met failed to see the benefit of such a reform.

191. Once again, it should be remembered that these considerations existed before Armenia joined the Council of Europe.

192. The final touches are now being put to a bill on alternative service, initiated by the National Assembly’s Defence Committee and based on the legislation in other European states. The Ministry of Defence has examined it. The bill should be submitted to the Assembly in the autumn. It its present form the bill would introduce an alternative military service under the authority of the Ministry of Defence, i.e. the choice for young people whose pacifist convictions or religious beliefs exclude them from carrying arms to be assigned to civilian tasks within the armed forces.²⁰ The Minister of Justice assured us that this bill would be submitted to the Council of Europe for an expert opinion at the appropriate juncture.

193. The Jehovah’s Witnesses we met confirmed that they categorically refuse to serve in the army but that if the legislation permitted they would be prepared to do civilian national service lasting longer than military service.

194. President Kocharian, however, told us that he had given clear instructions to the government and the parliamentary majority for this commitment to be honoured within two years. At the same time, he has given instructions for conscientious objectors in units to be given civilian tasks in the army. A Defence Ministry internal instruction set in place a procedure offering conscientious objectors the possibility of performing civilian tasks within the armed forces. About forty young people have apparently benefited.

195. With regard to the situation of conscripts in the army, we did not, during our visits, assess the truth of the allegations of brutality and ill-treatment which NGOs continue to report. Between January and May 2001, it is claimed that 15 young conscripts lost their life during their military service.

E.       Freedom of expression

i.       Freedom of the media

196. A 1991 law on the press and mass media has regulated media activity for the last ten years. When joining the Council of Europe, Armenia undertook to

“adopt, within one year of its accession, a new law on the media” (Opinion no. 221, paragraph 13.iii.c).

197. A draft law on the media was prepared by the Minister of Justice in December 2001 and submitted to the Council of Europe, whose experts examined it in February 2002. Two other drafts have been submitted by media representatives to the government, which considered them both to be unacceptable. The draft law finally decided upon by the government was again examined by Council of Europe experts in May 2002 and is on the National Assembly’s autumn session agenda. Its main provision concerns the setting up of an independent body responsible for supervising media activities.

198. Armenia also undertook to

“turn the national television channel into a public channel managed by an independent administrative board” (Opinion no. 221, paragraph 13.iv.e).

199. This reform was put into effect by presidential decree, then by a law on radio and television broadcasting passed in October 2000. The President of the Republic having referred it to the Constitutional Court, the National Assembly was asked to look at it again and adopted a number of amendments to the law between September and November 2001.

200. The law is not satisfactory by Council of Europe standards and will have to be amended. The Council of Europe sent its recommendations to the Armenian authorities in May 2002.

201. This law has in fact been hotly contested by the media themselves. Firstly because the members 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 – are all appointed by the President of the Republic, and secondly because it laid down such high specifications and technical standards that private television companies might find them impossible to comply with, and consequently lose their licence.

202. These are the two issues at the centre of the withdrawal of the broadcasting licence of channel A1+, the country’s only nationwide private channel. On 2 April 2002 A1+ was obliged to cease broadcasting, having lost the call for tenders for the frequency it had been using until then. The frequency was given to a rival channel, Sharm. The management of A1+ and Noyan Tapan, another unsuccessful candidate, together with journalists, NGOs and certain political parties, challenge the tendering procedure, which they allege was in serious breach of the legislation.

203. The matter has taken on an eminently political dimension, the opposition accusing President Kocharian of orchestrating the allocation of broadcasting licences in such a way as to exclude any media openly hostile to him.

204. The President of the National Radio and Television Commission informed us that the regulatory procedure had been followed and that the licences had been awarded to the media which made the best, most professional tenders, Sharm being an entertainment channel whose professionalism could not be criticised. The President assured us that a new call for tenders for the allocation of four new frequencies would be made on 25 October next.

205. The appeals made to the courts by the unsuccessful tenderers, NGOs and private individuals were all rejected.

206. In general terms, Armenia has clearly made progress as regards the freedom of expression, pluralism and free functioning of the media. The representatives of the press, television and electronic media with whom we spoke mentioned not the slightest obstacle to their journalistic activities. In the opinion of the international observers, the media are generally free to write what they please, and do so without restraint, regularly overstepping the boundaries of defamation.

207. However, there can be no truly independent media unless their sources of funding are independent of public subsidies – in other words of public power –, the business world and foreign states. This is not the case in Armenia.

208. We believe that the question of freedom of the media in Armenia is not so much one of any material and administrative obstacles or political pressure – even though we have been informed by NGOs of certain cases of harassment and strong-arm police action against journalists²¹ - as one of (absence) of professionalism or journalistic ethics, which both fall very far short of European standards.

209. No doubt because there is no appropriate training at a sufficiently high level – as there is no journalism college – the media demonstrate scarcely any critical approach and do not gauge the impact of what they report. Too often they are tempted to distort and misrepresent the information they relay, thereby perpetuating a spirit of propaganda, which is invariably more attractive to the public than the truth. On the other hand, it should be pointed out that the Armenian media appear to be much more tolerant and conscientious than those in the other Caucasian countries.

210. The Council of Europe should undoubtedly strengthen its programme of co-operation with Armenia in respect of freedom of expression, the media and the ethics of journalism.

ii.       Freedom to demonstrate

211. The NGOs that we met in 2001 informed us of the restrictions imposed on the freedom to demonstrate, mentioning that, in at least nine cases, the authorities have refused to authorise a demonstration. There is surely good reason to plan a law, or to amend any legislation that exists, on the right of peaceful assembly and the right to demonstrate.

212. We were also told of some instances of strong-arm police action, including action against Petros Makeyan, Chairman of the “Democratic Motherland” opposition party, who, at the end of a demonstration which he had helped to organise, was arrested by officials of the Ministry of the Interior on 7 September 2001 and beaten, before ultimately being sentenced to a period of administrative arrest. The officials concerned were never punished or prosecuted. More recently, on 14 May 2002, dozens of demonstrators hostile to the government and the President were arrested and immediately tried (see paragraph 80).

F.       The rights of national minorities

213. The Framework Convention for the Protection of National Minorities was ratified by Armenia even before it joined the Council of Europe, on 20 July 1998. Armenia submitted its first report under the convention in June 2001.

214. Between 95 and 97 % of Armenia’s population is of Armenian ethnic origin. There is, however, a large Yezidi community (a minority of Kurdish origin) of some 50,000 people, most of whom live in the region of Aragat and in Yerevan, as well as an equally important Russian community of approximately 12,000, and a dozen other minorities and ethnic groups, including German, Belorussian, Georgian, Greek, Jewish, Kurdish, Polish, Syrian, Ukrainian.

215. The results of the census which took place from 10 to 19 October 2001 should provide a complete and reliable demographic overview of the country.

216. There is no law on national minorities, but a draft law on minorities is, at the initiative of one of the parliamentary factions, currently being prepared at the National Assembly.

217. A Co-ordination Council of Ethnic Minorities comprising two representatives of each of the 11 national minorities was set up in June 2000 under a decree issued by the President of the Republic, with a view to promoting the protection of national minorities and to increasing central government’s awareness of minorities’ cultural and educational problems.

218. It would nevertheless seem, as indicated to us by the representatives of the Yezidi community, that their demands relate more to the promotion of minorities’ civil and political rights. The present voting system, in view of the small size of the country and the structure of its population, has never yet enabled national minorities to be guaranteed representation in parliament, in spite of their efforts to agree on a single list of candidates.

219. At present, however, the Yezidi have something much more serious to worry about: as a result of land privatisation these mainly rural herdsmen have been run off the land they occupied as they cannot afford to buy it. The authorities should draw their attention to this problem and find a solution which would respect the rights of this community.

VI.       THE NAGORNO-KARABAKH CONFLICT

220. On its accession to the Council of Europe, 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 ”.

221. The Nagorno-Karabakh issue, the intricacies of which are highly complex, has now been dragging on for over 12 years. This situation weighs heavily not only on bilateral relations between the two countries concerned, but also on the stability and the political and democratic balance of the whole region.

222. It is not for the monitoring co-rapporteurs, whose terms of reference are strictly limited by the commitments entered into, to adopt any position whatsoever on the negotiations proper, if the substance of these is in fact known. Their task is simply that of ensuring that each country does actually comply with its commitments to the Council of Europe in this sphere.

223. In fact, the co-rapporteurs note that the attitude of both countries’ representatives - not even mentioning that of the media - does not exactly help to calm things down, tending to do the opposite and to inflame an already highly complex and painful situation. Exchanges between Armenia and Azerbaijan continue to be rather unpleasant, even in international fora, and the media pass on very much the same message, taking pleasure in adding fuel to the fire

224. Similarly, whereas the Parliamentary Assembly in the year 2000 expressed its conviction that the accession of Armenia and Azerbaijan “could help to establish the climate of trust necessary for a solution to the conflict in Nagorno-Karabakh” (Opinion No. 211, para.8), we note that the Parliamentary Assembly and its committees more frequently serve as a place for settling scores than as one for genuine dialogue which might encourage a revival of trust between the two countries.

225. Accession to the Council of Europe did not bring any progress in the settlement of the conflict, as expected. The negotiation process for which the OSCE’s Minsk Group²² is responsible has come to a standstill. No substantial progress has been made in recent years in the attempts made to resolve the conflict. The Minsk Group’s efforts since 1992 have nevertheless been considerable.

226. Presidents Aliyev and Kocharian have met 20 times since 1999, including meetings in Paris in March 2001, in Key West (Florida) in April 2001, in Sotchi in August 2001, in Moscow in November last, and most recently in Sadarak, on the border between the two countries, in August 2002, without any final compromise having been able to be agreed and signed, each party accusing the other of intransigence and of putting forward unacceptable proposals. The next meeting will be in Chisinau in October, on the sidelines of the CIS Summit.

227. These meetings certainly send out a positive signal, but the negotiations are deadlocked, and it is clear that the reasons for the blockage are the imminence of important elections in both countries in the year 2003 and the fear of extreme reactions by the public which would be counterproductive during an election campaign.

228. With the Azeri authorities rigidly defending respect for the principle of their country’s territorial integrity, and the Armenian authorities anxious to protect the interests of the Armenian population of Nagorno-Karabakh, and supporting application of the right to self-determination, the lasting settlement of the conflict by peaceful means - for which both heads of state call - can only be achieved through a compromise solution. As the population is ready for such a compromise in neither country, public opinion alone is a very great impediment to any decisive progress in the negotiations²³.

229. Territorially, the de facto situation has not changed since the May 1994 ceasefire. Although the ceasefire is being respected, occasional incidents and skirmishes do occur. On 7 August 2002 an Azeri officer was killed and two soldiers wounded. Armenian volunteer troops still occupy seven districts which belong to the Republic of Azerbaijan (Kelbadjar, Jebrayil, Gubadly, Zangelan, Latchin and the greater part of the districts of Aghdam and Fizuli).

230. In Nagorno-Karabakh itself, authorities have been in position at the head of the self-proclaimed republic for almost ten years now (since January 1992). These authorities are recognised by no state. The Armenian authorities, however, acknowledge that they have special links with the authorities of Nagorno-Karabakh, and they do support those authorities’ efforts to establish political democracy and to consolidate the rule of law there. During our first visit, we had the opportunity to meet with representatives of the self-proclaimed republic and discuss the situation of Nagorno-Karabakh in the political, economical, social and humanitarian fields.

231. According to the UNHCR, there are a maximum of 270,000 refugees now in Armenia who came from Azerbaijan between 1988 and 1992. They have, in principle, been fairly well integrated, enjoying advantageous refugee status since a law was passed in 1999. Since the law on nationality was adopted in 1999, 38,000 refugees have been naturalised. However, they too have suffered the consequences of land and property privatisation and many have recently been obliged to leave the buildings in which they had been reinstated and move to new accommodation elsewhere.

232. The question of refugees, their current situation and their future was the subject of a recent report by the Committee on Migration, Refugees and Demography²⁴.

233. But other humanitarian problems remain to be solved. One is that of the persons who have disappeared during the conflict.

CONCLUSION

234. We have to acknowledge that Armenia has made significant efforts to honour the obligations and commitments which it agreed to accept when it joined the Council of Europe, a year and a half ago. We must also highlight the good co-operation overall by the Armenian authorities with the various Council of Europe bodies, particularly the Venice Commission.

235. Genuine progress has been made, especially in terms of the signature and ratification of European conventions and in the legislative field. But with a difficult process of constitutional reform going on, and with elections being held relatively soon, it is clear that a number of commitments might well fail to be honoured within the time limits, including fundamental commitments such as the abolition of the death penalty. In the political sphere, Armenia has great expectations, and it would be regrettable for this timetable further to slow down the work begun, often even before the country had joined the Organisation.

236. As regards several commitments, the time limits laid down in Opinion 221 (2000) have not been respected – ratification of Protocole No. 6, adoption of the Criminal Code, adoption of the law of ombudsman, law on the media.

237. We hope that the Armenian authorities will demonstrate genuine determination, in particular by abolishing the death penalty without delay, by substantially improving the operation and independence of its judicial system, by speedily releasing from prison the young Jehovah’s Witnesses who refuse to perform military service, and by taking the necessary measures to put an end to the police brutality and human rights violations periodically reported by NGOs.

APPENDIX I

Opinion No. 221 (2000)^[1]

Armenia’s application for membership of the Council of Europe

 

(Extract from the OffICE database of the Council of Europe - June 2000)

1. The Republic of Armenia applied to join the Council of Europe on 7 March 1996. In Resolution (96) 21 of 15 May 1996 the Committee of Ministers invited the Parliamentary Assembly to give an opinion on this request in accordance with Statutory Resolution 51 (30A).

2. The Armenian Parliament obtained Special Guest status with the Parliamentary Assembly of the Council of Europe on 26 January 1996. This application was considered in the light of the adoption of Recommendation 1247 (1994) on the enlargement of the Council of Europe, in which the Assembly stated that “in view of their cultural links with Europe, Armenia, Azerbaijan and Georgia would have the possibility of applying for membership provided they clearly indicate their will to be considered as part of Europe”.

3. Delegations from the Assembly observed the presidential election in March 1998 and the general elections in July 1995 and May 1999.

4. Since 1996 Armenia has been taking part in various activities of the Council of Europe through the intergovernmental co-operation and assistance programmes, and in the work of the Assembly and its committees through its special guest delegation.

5. Armenia is a party to the European Cultural Convention and the Council of Europe’s Framework Convention for the Protection of National Minorities, a member of the Open Partial Agreement on the Prevention of Protection against and Organisation of Relief in Major Natural and Technological Disasters, and an associate member of the Venice Commission, with which it has developed close co-operation. The Assembly also takes note of the fact that Armenia has requested accession to the European Convention on Extradition and the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, and that it has recently signed six other Council of Europe conventions.

6. The Assembly considers that Armenia is moving towards a democratic, pluralist society, in which human rights and the rule of law are respected, and, in accordance with Article 4 of the Statute of the Council of Europe, is able and willing to pursue the democratic reforms initiated in order to bring its entire legislation and practice into conformity with the principles and standards of the Council of Europe.

7. In asking the Assembly for an opinion on the membership application, the Committee of Ministers reiterated that a closer relationship between the Caucasian countries and the Council of Europe would demand not only the implementation of substantial democratic reforms, but also their commitment to resolve conflicts by peaceful means.

8. The Parliamentary Assembly believes that the accession of both Armenia and Azerbaijan could help to establish the climate of trust necessary for a solution to the conflict in Nagorno-Karabakh.

9. The Assembly considers that the OSCE’s Minsk group is the optimum framework for the negotiation of a peaceful settlement to the conflict.

10. The Assembly takes note of the letter from the President of Armenia in which he undertakes to respect the cease-fire agreement until a final solution is found to the conflict and to continue the efforts to reach a peaceful negotiated settlement on the basis of compromises acceptable to all parties concerned.

11. The frequency of meetings between the presidents of the two countries has been stepped up. The speakers of the parliaments of Armenia, Azerbaijan and Georgia have decided to institute regional parliamentary co-operation, consisting in particular of meetings of the speakers of the parliaments and parliamentary seminars to be held in the capitals of the three countries and in Strasbourg. The first meeting in the region, which was held in Tbilissi in September 1999, made it possible to establish an atmosphere of trust and détente between the parliamentary delegations of Armenia and Azerbaijan.

12. The Assembly calls on the Armenian and Azerbaijani authorities to pursue their dialogue with a view to achieving a peaceful settlement of the conflict in Nagorno-Karabakh and giving new impetus to regional co-operation.

13. The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments:

i. conventions:

a. to sign, at the time of its accession, the European Convention on Human Rights (ECHR), as amended by Protocols Nos. 2 and 11 thereto, and Protocols Nos. 1, 4, 6 and 7;

b. to ratify the ECHR and Protocols Nos. 1, 4, 6 and 7 thereto during the year following its accession;

c. to sign and ratify, within one year of its accession, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its protocols;

d. to sign and ratify, within one year of its accession, the European Charter for Regional or Minority Languages;

e. to sign and ratify, within one year of its accession, the European Charter of Local Self-Government;

f. to sign and ratify, within two years of its accession, the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities and its additional protocols, and the Council of Europe conventions on extradition, on mutual assistance in criminal matters, on laundering, search, seizure and confiscation of the proceeds from crime, and on the transfer of sentenced persons, and in the meantime to apply the fundamental principles contained therein;

g. to sign the European Social Charter within two years of its accession and ratify it within three years of accession, and to strive forthwith to implement a policy consistent with the principles of the Charter;

h. to sign the General Agreement on Privileges and Immunities of the Council of Europe and the protocols thereto at the time of its accession, and to ratify these within one year of its accession;

ii. the conflict in Nagorno-Karabakh:

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;

iii. domestic law:

a. to adopt, within one year of its accession, the second (specific) part of the Criminal Code, thus abolishing de jure the death penalty and decriminalising consensual homosexual relationships between adults;

b. to adopt, within six months of its accession, the law on the ombudsman;

c. to adopt, within one year of its accession, a new law on the media;

d. to adopt, within one year of its accession, a new law on political parties;

e. to adopt, within one year of its accession, a new law on non-governmental organisations;

f. to adopt, within six months of its accession, the law on the transfer of responsibility for the prison system, including pre-trial detention centres and work colonies, from the Ministry of the Interior and the Ministry for National Security to the Ministry of Justice thus ensuring the thorough reform and demilitarisation of the system, and to ensure the effective implementation of this law within six months after it has been adopted, except as regards the effective transfer of the pre-trial detention centres and work colonies, which must be implemented within one year after the law has been adopted;

g. to adopt, within one year of its accession, the law on the civil service;

h. 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);

i. to remedy the deficiencies of the new electoral law before the next elections, in particular as regards the procedural aspects of the work of the electoral committees and the authorities responsible for drawing up electoral registers;

iv. human rights:

a. 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;

b. to ensure that all churches or religious communities, in particular those referred to as “non-traditional”, may practise their religion without discrimination;

c. to co-operate fully with NGOs in ensuring that the rights of prisoners and conscripts are respected;

d. 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;

e. to turn the national television channel into a public channel managed by an independent administrative board;

v. monitoring of commitments:

a. to co-operate fully in the implementation of Assembly Resolution 1115 (1997) on the setting-up of an Assembly committee on the honouring of obligations and commitments by member states of the Council of Europe (Monitoring Committee); and

b. to co-operate fully in the monitoring process established pursuant to the declaration adopted by the Committee of Ministers on 10 November 1994 (95th session).

14. The Parliamentary Assembly notes that Armenia shares fully its understanding and interpretation of commitments entered into as spelt out in paragraph 13, and intends:

i. to ensure that parliament is kept fully informed about the investigation into the events of 27 October 1999, in conformity with the existing legislation;

ii. 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;

iii. to reform the Judicial Council in order to increase its independence within three years of accession;

iv. to institute, without delay, a follow-up procedure which conforms to Council of Europe standards to complaints received on alleged ill-treatment in police custody, pre-trial detention centres, prisons and the army, and to ensure that those found guilty of such acts are punished in accordance with the law;

v. to consider, at least partially, time served in a disciplinary battalion as compulsory military service, and to ensure that the sentence of time to be served in such a battalion can be shortened if the soldier conducts himself well;

vi. to pay special attention to the fate of homeless children and those in conflict with the law.

15. On the basis of these commitments, the Assembly is of the opinion that, in accordance with Article 4 of the Statute of the Council of Europe, Armenia is able and willing to fulfil the provisions of Article 3 of the Statute, setting forth the conditions for membership of the Council of Europe: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council of Europe.”

16. With a view to ensuring compliance with these commitments, the Assembly decides to monitor the situation in Armenia closely, with immediate effect from the date of accession, pursuant to its Resolution 1115 (1997).

17. On the understanding that the commitments set out above are firm and will be fulfilled within the stipulated time limits, the Assembly recommends that the Committee of Ministers:

i. invite Armenia to become a member of the Council of Europe;

ii. allocate four seats to Armenia in the Parliamentary Assembly;

and requests that the necessary additional resources be made available.

18. Furthermore, in order to enable Armenia to honour its commitments and obligations as a member state, the Assembly also recommends that the Committee of Ministers develop its assistance to the Armenian authorities in the framework of the activities for the development and consolidation of democratic stability (Adacs). In addition, the Assembly recommends that the Council of Europe Development Bank provide assistance where appropriate

_____________________

^[1] Assembly debate on 28 June 2000 (21st Sitting) (see Doc. 8747, report of the Political Affairs Committee, rapporteur: Mr Volcic, and Doc. 8756, opinion of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Spindelegger).

Text adopted by the Assembly on 28 June 2000 (21st Sitting).

APPENDIX II

Letter addressed by Mr Hovhannisyan, Chairman of the Armenian delegation,

to the co-rapporteurs

UNOFFICIAL TRANSLATION

STANDING COMMITTEE ON FOREIGN RELATIONS

OF THE NATIONAL ASSEMBLY OF THE REPUBLIC OF ARMENIA

Yerevan, 4 September 2002

To the Co-Rapporteurs of the

Committee on the Honouring of Obligations and

Commitments by Member States of the

Council of Europe

Dear Madam,

Dear Sir,

I would like, first of all, to thank you most sincerely once again for the high quality of your work and the thorough way in which you have undertaken your task of monitoring the commitments entered into by Armenia.

As you were able to ascertain during your last visit, Armenia has, in the intervening period past, fulfilled the vast majority of the commitments it entered into upon accession to the Council of Europe. Of course, there is still some work to be done in order to honour all these commitments, first and foremost the abolition of the death penalty and ratification of Protocol No. 6 to the European Convention on Human Rights.

With regard to this particular question, I would like, as head of the Armenian delegation, to provide the following information:

There has been a moratorium on the death penalty in Armenia since February 1991 and no person sentenced to death has been executed in this period. I would also like to point out that since 25 January 2001, the date of Armenia’s accession to the Council of Europe, no death sentence has been handed down.

Since Armenia’s accession to the Council of Europe, the Armenian authorities and the National Assembly have been working hard in close co-operation with experts from the Council of Europe and the Venice Commission, bearing in mind that under the current Armenian constitution, ratification of Protocol No. 6 to the European Convention on Human Rights was impossible. This is one of the reasons why a committee was formed to draw up, in collaboration with experts from the Venice Commission, draft constitutional reforms to strengthen significantly the guarantees offered in the field of human rights.

In December 2001, the Venice Commission issued an opinion which stated that the abolition of the death penalty could be envisaged under the current constitution. Taking this opinion into consideration, the Armenian National Assembly and government began working on a new draft Criminal Code. This draft, which provides for the abolition of the death penalty, was approved by the National Assembly at first reading on 20 June last. It was forwarded to the Council of Europe for an expert opinion at the end of July last. It is expected that the experts will be submitting their opinion by October 2002 at the latest. A meeting with these experts is scheduled to be held in Yerevan in early November.

I can therefore state that the Criminal Code will be approved in its final version by 10 December 2002, the end of the autumn session of the National Assembly.

I would also like to remind you that Mr Robert KOCHARIAN, President of the Republic of Armenia, undertook, in your presence, to sign – once the Criminal Code has been approved – a decree commuting the sentence of the 31 persons currently sentenced to death to life imprisonment.

I would like, if I may, to draw your attention once again to the sensitive and complex issue of the abolition of the death penalty in Armenia. As you will be aware, the tragic events which occurred in the Armenian parliament on 27 October 1999 was a severe shock for the Armenian public. A large majority of the Armenian political class views the question of ratification of Protocol No. 6 to the European Convention on Human Rights as a political issue which, in the approach to the major elections, could be prejudicial to the cause of the abolition of the death penalty in our country.

It is for this reason that we think it would be preferable to defer ratification of Protocol No. 6 to the Convention until 2003 and we undertake to ensure that it will take place by April next year.

In putting forward this request, we wish to reassert our determination to press ahead with the objective of abolishing the death penalty in Armenia; the adoption of a new Criminal Code which provides for the elimination of the death penalty, and the commuting of the sentences of the 31 people currently under sentence of death by the end of 2002 will be an essential part of this process.

I would be most grateful if you could give consideration to the above and incorporate the aforementioned dates into your report.

Welcoming the atmosphere of trust which has always prevailed in our relations,

I remain,

Yours faithfully,

Hovhannès HOVHANNISYAN

Chair of the Armenian Delegation

APPENDIX III

Programme of the visit of Mrs Irena Belohorska,

Co-rapporteur on the monitoring of obligations and commitments by Armenia

(Yerevan, 15-18 October 2001)²⁵

Secretariat : Mr Egbert Ausems

       Mrs Valérie Clamer

Monday, 15 October 2001

4.45       Arrival of Mrs Belohorska in Yerevan

Accommodation at the hotel Armenia

11.00       Breakfast

12.00       Visit to Jehovah’s Witnesses conscientious objectors (Kosh corrective labour colony)

14.00       Lunch

16.00       Meeting with His Eminence Abp. Hovnan Derderian, representative of His Holiness Garegin II, Catholicos of all Armenians (Catholicosat of St Echmiadzin)

19.30       Dinner

23.55       Arrival of Mr Ausems and Mrs Clamer in Yerevan

Tuesday, 16 October 2001

9.00       Breakfast

10.00       Meeting with Mrs Elaine Conkievich, Deputy Head of the OSCE Office in Yerevan and the representatives of international organisations (UNHCR, UNICEF, EU/European Commission, ICRC, IFRC, IOM) in the OSCE Office

12.00       Meeting with the leaders of religious communities, and members of the State Committee of Religious Affairs

13.30       Lunch

15.00       Meeting with the representatives of NGO’s

16.30 Meeting with the representatives of Mass Media

18.00       Meeting with Mr Aram Tamazyan, Prosecutor General of the Republic of

      Armenia

20.00       Working dinner with the Ambassadors of the Member States of the Council of Europe present in Yerevan hosted by H.E. Paolo Andrea Trabalza, Ambassador of Italy (Restaurant “Ai Leoni”)

Wednesday, 17 October 2001

8.30       Breakfast

9.30       Meeting with Mr Armen Martirosyan, Deputy Minister of Foreign Affairs of the Republic of Armenia

10.30       Meeting with Mrs Naira Melkumyan, de facto Minister of Foreign Affairs of the self-proclaimed Republic of Nagorno Karabakh and representatives of NGOs of Nagorno Karabakh

11.30       Meeting with Mr Davit Harutyunyan, Minister of Justice of the Republic of Armenia

12.30       Meeting with Mr Henrik Danielyan, President of the Supreme Court of the Republic of Armenia

13.30       Lunch

14.30       Visit to the pre-trial detention centre of Muratashen

16.45       Meeting with Mr Ararat Mahtesyan, first Deputy Minister of Interior of the Republic of Armenia

18.00       Meeting with Mr Gagik Harutyunyan, Chairman of the Constitutional Court of the Republic of Armenia

20.00       Diner hosted by Mr Hovhannes Hovhannisyan, Chairman of the Armenian parliamentary Delegation to the Council of Europe

Thursday, 18 October 2001

8.00       Breakfast

9.00       Meeting with the Armenian parliamentary Delegation to the Council of Europe

9.45       Meeting with Mr Hovhannes Hovhannisyan, Chairman, and the members of the Committee on Foreign Relations of the National Assembly

10.15       Meeting with Mr Victor Dallakian, Chairman, and the members of the State and Legal Affairs Committee of the National Assembly

10.45 - 14.25       Meeting with the leaders of majority and opposition parties and factions of the National Assembly

10.45       Meeting with Mr Galust Sarakyan and the representatives of the “Unity” faction

11.10       Meeting with Mr Hmayah Hovhannisyan and the representatives of the “Agro-Industrial Popular Union” parliamentary group

11.35       Meeting with Mr Karen Karapetyan and the representatives of the “People’s Deputy” parliamentary group

12.00       Meeting with Mr Aghvan Vardanyan and the representatives of the “Armenian Revolutionary Federation” faction

12.25       Meeting with Mr Frunze Kharakyan and the representatives of the “Communist Party of Armenia” faction

12.50       Meeting with Mr Myasnik Malkhasyan and the representatives of the “Hayastan” parliamentary group

13.15       Meeting with Mr Artur Baghdasaryan and the representatives of the “Rule of Law” faction

13.40       Meeting with Mr Artashes Geghamyan and the representatives of the “Law and Unity” faction

14.05       Meeting with Mr Seyran Avagyan and the representatives of the “National democratic Union” faction

14.30       Lunch

15.45       Meeting with Mr Armen Khachatryan, President of the National Assembly of the Republic of Armenia

16.45       Meeting with Mr Andranik Margaryan, Prime Minister of the Republic of Armenia

18.00       Meeting with Mr Robert Kocharian, President of the Republic of Armenia

20.00       Dinner hosted by Mr Armen Khachatryan, President of the National Assembly of the Republic of Armenia, in the honour of the rapporteurs of the Parliamentary Assembly, Mrs Belohorska and Mrs Vermot-Mangold

Friday, 19 October 2001

5.35 Departure of Mrs Belohorska, Mr Ausems and Mrs Clamer

APPENDIX IV

Programme of the visit of Mrs Irena Belohorska and Mr Jaskiernia,

Co-rapporteurs on the monitoring of obligations and commitments by Armenia

(Yerevan, 19-23 August 2002)

Monday, 19 August 2002

4:45       Arrival of the delegation to Yerevan

      Accommodation at the hotel Congress

14.00       Meeting with Mr. Roy Reeve, Head of the OSCE Office in Yerevan, and the representatives of the international organisations (UNHCR, ICRC/IFRC, IOM) (OSCE Office)

15.15       Meeting with the NGOs representatives (Office of the Council of Europe)

16.30        Meeting with the representatives of the Jehovah’s Witnesses (Office of the Council of Europe)

17.15        Visit to the Nubarashen pre trial detention centre

20.00       Diner

Tuesday, 20 August 2002

8.00       Working breakfast with the Ambassadors of the member states of the Council of Europe present in Yerevan hosted by S. E. Paolo Andrea Trabalza, Ambassador of Italia (hotel Congress)

9.30       Meeting with the Mass Media

10.30       Meeting with Mr. Davit Harutyunyan, Minister of Justice

11.20       Meeting with Mr. Aram Tamazyan, Prosecutor General

12.15       Meeting with Mr. Armen Martirosyan, Vice- Minister of Foreign Affairs

13.15       Lunch

14.30       Meeting with the Vice-Minister of the National Security

15.30       Meeting with Mr. Ararat Mahtesian, first Vice-Minister of Interior

16.30       Meeting with Mr. Artak Sahradyan, Chairman of the Central Electoral Committee

19.30       Dinner hosted by the Armenian parliamentary delegation to the Council of Europe

Wednesday, 21 August 2002

9:00       Meeting with Armenian parliamentary delegation to the Council of Europe

9.30       Meeting with Mr. Hovhannes HOVHANNISYAN, Chairman of the Committee on Foreign Relations of the National Assembly

10.05       Meeting with Mr. Victor DALLAKYAN, Chairman of the State-Legal Committee of the National Assembly

10.40       Meeting with Mr. Vahan HOVHANNISYAN, Chairman of the Standing Committee on Defence, National Security and Internal Affairs of the National Assembly

11.15       Meeting with Mr. Galust SAHAKYAN, Chairman, and members of the "Unity" faction

11.50       Meeting with Mr. Hmayak HOVHANNISSYAN, Chairman, and members of the "Agro-Industrial Popular Union" parliamentary group

12.25       Meeting with Mr. Aghvan VARDANYAN, Chairman, and the members of the "Armenian Revolutionary Federation" faction

13.10        Meeting with the families of victims of the events on 27 October 1999

13.40       Lunch

14.35       Meeting with Mr. Frunze KHARATYAN, Chairman, and the members of the "Communist Party of Armenia" faction

15.10       Meeting with Mr. Miasnik MALKHASYAN, Chairman, and the members of the "Hayastan" parliamentary group

15.45       Meeting with Mr. Artur BAGHDASARYAN, Chairman, and the members of the "Rule of Law" faction

16.20       Meeting with Mr. Artashes GEGHAMYAN, Chairman, and the members of the "Law and Unity" faction

16.55       Meeting with Mr. Simon BAGHDASARYAN, Chairman, and the members of the "National Democratic Union" faction

17.30       Meeting with Mr. Tigran TOROSYAN, Vice-Chairman of the National Assembly, Member of the Committee on the commitments

19.30       Dinner hosted by Mr. Gagik Aslanyan, Vice-Chairman of the National Assembly

Thursday, 22 August 2002

9.45       Meeting with Mr. Robert NAZARYAN, Major of the city of Yerevan

10.45       Visit to two of the inmates being tried for the October 1999 events

12.30       Lunch

14.00       Meeting with Mr. Grigor Amalyan, Chairman of the Committee on TV and radio

15.30       Meeting with Mr. Robert KOCHARYAN, President of the Republic of Armenia

17.30       Departure for the Lake Sevan

20.00       Dinner hosted by Mr. Hovhannes Hovhannisyan, Chairman of the Armenian parliamentary delegation to the Council of Europe

Friday, 22 August 2002

5:30       Departure of the delegation

APPENDIX V

19 treaties signed and ratified on 09/09/02

ETS No.	Title			Opening for signature
001	Statute of the Council of Europe			05/05/49
		Ratification or accession: 25/01/01	Entry into force on : 25/01/01
002	General Agreement on Privileges and Immunities of the Council of Europe			02/09/49
		Ratification or accession: 25/06/01	Entry into force on : 25/06/01
005	Convention for the Protection of Human Rights and Fundamental Freedoms			04/11/50
	Signature: 25/01/01	Ratification or accession: 26/04/02	Entry into force on : 26/04/02
009	Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms			20/03/52
	Signature: 25/01/01	Ratification or accession: 26/04/02	Entry into force on : 26/04/02
010	Protocol to the General Agreement on Privileges and Immunities of the Council of Europe			06/11/52
		Ratification or accession: 25/06/01	Entry into force on : 25/06/01
018	European Cultural Convention			19/12/54
		Ratification or accession: 25/04/97	Entry into force on : 25/04/97
024	European Convention on Extradition			13/12/57
	Signature: 11/05/01	Ratification or accession: 25/01/02	Entry into force on : 25/04/02
030	European Convention on Mutual Assistance in Criminal Matters			20/04/59
	Signature: 11/05/01	Ratification or accession: 25/01/02	Entry into force on : 25/04/02
046	Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto			16/09/63
	Signature: 25/01/01	Ratification or accession: 26/04/02	Entry into force on : 26/04/02
112	Convention on the Transfer of Sentenced Persons			21/03/83
		Ratification or accession: 11/05/01	Entry into force on : 01/09/01
117	Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms			22/11/84
	Signature: 25/01/01	Ratification or accession: 26/04/02	Entry into force on : 01/07/02
122	European Charter of Local Self-Government			15/10/85
	Signature: 11/05/01	Ratification or accession: 25/01/02	Entry into force on : 01/05/02
126	European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment			26/11/87
	Signature: 11/05/01	Ratification or accession: 18/06/02	Entry into force on : 01/10/02
148	European Charter for Regional or Minority Languages			05/11/92
	Signature: 11/05/01	Ratification or accession: 25/01/02	Entry into force on : 01/05/02
151	Protocol No. 1 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment			04/11/93
	Signature: 29/01/02	Ratification or accession: 18/06/02	Entry into force on : 01/10/02
152	Protocol No. 2 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment			04/11/93
	Signature: 29/01/02	Ratification or accession: 18/06/02	Entry into force on : 01/10/02
155	Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby			11/05/94
	Signature: 25/01/01	Ratification or accession: 26/04/02	Entry into force on : 26/04/02
157	Framework Convention for the Protection of National Minorities			01/02/95
	Signature: 25/07/97	Ratification or accession: 20/07/98	Entry into force on : 01/11/98
162	Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe			05/03/96
	Signature: 25/06/01	Ratification or accession: 18/06/02	Entry into force on : 19/07/02

20 treaties signed but not ratified on 09/09/02

ETS No.	Title			Opening for signature
031	European Agreement on the Abolition of Visas for Refugees			20/04/59
	Signature: 11/05/01
073	European Convention on the Transfer of Proceedings in Criminal Matters			15/05/72
	Signature: 08/11/01
086	Additional Protocol to the European Convention on Extradition			15/10/75
	Signature: 08/11/01
090	European Convention on the Suppression of Terrorism			27/01/77
	Signature: 08/11/01
098	Second Additional Protocol to the European Convention on Extradition			17/03/78
	Signature: 08/11/01
099	Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters			17/03/78
	Signature: 08/11/01
106	European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities			21/05/80
	Signature: 03/04/02
114	Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty			28/04/83
	Signature: 25/01/01
116	European Convention on the Compensation of Victims of Violent Crimes			24/11/83
	Signature: 08/11/01
120	European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches			19/08/85
	Signature: 26/05/00
135	Anti-Doping Convention			16/11/89
	Signature: 26/05/00
138	European Convention on the General Equivalence of Periods of University Study			06/11/90
	Signature: 26/05/00
141	Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime			08/11/90
	Signature: 11/05/01
143	European Convention on the Protection of the Archaeological Heritage (Revised)			16/01/92
	Signature: 26/05/00
147	European Convention on Cinematographic Co-Production			02/10/92
	Signature: 26/05/00
159	Additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities			09/11/95
	Signature: 03/04/02
163	European Social Charter (revised)			03/05/96
	Signature: 18/10/01
165	Convention on the Recognition of Qualifications concerning Higher Education in the European Region			11/04/97
	Signature: 26/05/00
169	Protocol No. 2 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities concerning interterritorial co-operation			05/05/98
	Signature: 03/04/02
185	Convention on Cybercrime			23/11/01
	Signature: 23/11/01

Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe

Reference to committee: Resolution 1115 (1997) of 27 January 1997 and Opinion No. 221 (2000)

Draft resolution unanimously adopted by the committee on 10 September 2002

Members of the committee: Mrs Durrieu (Chairperson), Mr Pollozhani, Mrs Severinsen, Mr Frunda (Vice-Chairpersons), Mrs Akgönenç, Mr Akhvlediani, Mr B. Aliyev, Mr Arzilli, Mr Atkinson, Mrs Belohorska, Mr Bindig, Mr van den Brande, Mr Budin, Mr Cekuolis, Mr Christodoulides, Mr Cilevics, the Rt.Hon.T. Davis, Mr Debono Grech, Mrs Delvaux-Stehres, Mr Dobelis, Mr Einarsson, Mr Enright, Mr Eörsi, Mrs Feric-Vac, Mr Frey, Mr Glesener, Mr Gligoroski, Mr Gross, Mr Gürkan, Mr Gusenbauer, Mr Hancock, Mr Haraldsson, Mr Hegyi, Mr Holovaty, Mr Jakic, Mr Jansson, Mr Jaskiernia, Mr Jurgens, Mrs Kautto, Lord Kilclooney, Mr Kirilov, Mr van der Linden, Mr Lintner, Mr Magnusson, Mr Martinez Casan, Mr Medeiros Ferreira, Mr Mollazade, Mr Neguta, Mr Olekas, Mr Olteanu, Mr Pangalos, Mr Rakhansky, Mrs Ringstad, Mr Rivolta, Mr Rogozin, Mr Rustamyan, Mr Saglam, Mrs Shakhtakhtinskaya, Mr Shishlov, Mr Slutsky, Mr Smorawinski, Mr Soendergaard, Mrs Stoyanova, Mr Surjan, Mr Tepshi, Mrs Tevdoradze, Mr Vahtre, Mr Vella, Mr Weiss, Mrs Wohlwend, Mr Yanez-Barnuevo, Mr Zacchera, Mr Zierer

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Mrs Ravaud, Mr Mezei, Mrs Clamer, Ms Mathey

¹        Reproduced in Appendix I.

²        The programmes of the visits are set out in Appendices II and III.

³        See document AS/Bur (2001) 57, in which Lord Russell-Johnston noted in particular that “the democratisation process had undoubtedly made good progress. Reform is implemented gradually, step by step, in all areas, and it is most certainly moving in the right direction”.

⁴        Moreover when the Committee of Ministers invited Armenia and Azerbaijan to become members of the Organisation, it decided, on 9 November 2000, to set up ad hoc monitoring and instructed the Ministers' Deputies regularly to monitor democratic developments in both countries. As the Committee of Ministers monitoring group visited Armenia on 2 and 3 July 2001, the Monitoring Committee decided to postpone its co-rapporteurs’ visit initially scheduled for 9 to 12 July 2001 to a later date, so as to avoid what several members of the committee described as “a clear and immediate overlap of activities” (see also the progress report of the Committee 2000-2001, Doc. 9198). A second visit by the Ago Group took place from 15 to 17 May 2002. The report by the GT-SUIVI.AGO was forwarded to the Parliamentary Assembly on 20 June 2002, following the Committee of Ministers’ decision of 13 June 2002.

⁵ All the political groups and factions in the Assembly agreed to the list of commitments accepted by Armenia. During the Assembly debate on Armenia’s accession, only one parliamentarian voted against ratification of the Council of Europe’s Statute.

⁶ The Venice Commission recalled that “the Armenian Constitution provides that, once ratified, international treaties form a constituent part of the domestic legal system and that they prevail over ordinary laws (Article 6 § 4). Accordingly, once ratified, the European Convention will be ipso facto incorporated into the Armenian legal system”. It noted that “the Constitution being silent about the form in which the abolition [of the death penalty] must be done, it can be achieved through ratification of Protocol 6. (…) Although a Constitutional revision is not necessary prior to ratification of the European Convention, harmonisation of the Constitution with its requirements is necessary in order to lift possible ambiguities as to the scope of human rights and freedoms under the Constitution and the European Convention and their effective implementation. (…) In order to allow that the European Convention be applied effectively, it is imperative that the scheduled constitutional reform be effected without undue delays.”

⁷ See the report of the ad hoc Committee to observe the parliamentary elections in Armenia (30 May 1999), Doc.8448.

⁸ The new constituencies will be operational from the local elections. The law was aimed at reducing the representativity gap between the constituencies. Servicemen will be able to vote, but only in national elections and in the proportional representation ballot. Armenian nationals who do not have their permanent place of residence in Armenia will be kept on the electoral registers. Finally, the authorities have undertaken to revise the electoral registers before the next local elections.

⁹ One example is the mass arrest of 27 inhabitants of Vanadzor on 19 December 2000, who were sentenced at once to 10 day’s administrative detention by the Court of first instance, without being heard or having access to a lawyer, or even being informed of the reason for their arrest.

¹⁰ The Poghos Poghosyan case is characteristic of judicial system malfunction in many respects. On 25 September 2001 P. Poghosyan died in a café in Yerevan after being beaten by one of President Kocharian’s bodyguards, after the President, being taken to task, had left the premises. Following a trial at which a number of witnesses failed to appear, the bodyguard was given a two-year suspended sentence for unintentional assault. The verdict was decried by NGOs and the opposition. When we asked him about it the Minister of Justice explained that the verdict was no different from those pronounced in similar cases.

¹¹ In its report on the revised Constitution of the Republic of Armenia, the Venice Commission stated: “It is not yet clear whether the Procuracy and the Prosecutor General are to be regarded as parts of the judiciary or an independent office attached to the executive. Much will depend on whether the Procuracy will also be entrusted with the task of defending the State interests in civil and administrative cases (American model) …” [see Doc. CDL-INF (2001) 17, p.14, para.71].

¹² Two other defendants, released during the investigation, filed complaints for torture and violence during the investigation; the Prosecutor’s Office opened an investigation into these allegations in March 2002.

¹³ The two persons charged are being held in solitary confinement: no contact between them or with others, except for the guards and investigators (only the International red Cross has been authorised to visit them); their families are not allowed to visit them; their lawyer has visited them only twice in prison, but they are allowed to talk to him freely during the trial; they cannot receive or send any correspondence; they have no access to radio or television, but can read the daily newspapers of their choice; they have access to the prison library, but cannot receive books from outside.

¹⁴ This is an important distinction: some of the people we spoke to during our last visit hinted that they did not exclude the possibility that executions had taken place since 1999 but in Rostov (Russia), which was the regional centre for capital punishment during the Soviet era.

¹⁵ Note that the recent decision to introduce a course on the history of the Armenian Apostolic Church into the school curriculum starting in 2002 appears to be in complete contradiction with this principle.

¹⁶ The Council is chaired by the Prime Minister and its members include the advisers to the Prime Minister and the President, Assembly members, and representatives of certain ministries, the Public Prosecutor’s Office, the Armenian Apostolic Church, NGOs and the Science Academy. No other religious organisations are represented.

¹⁷ Jehovah’s Witnesses are regularly harassed in the street and sometimes beaten without any reaction from the police.

¹⁸ Article 244 of the Criminal Code, inherited from the Soviet regime, punishes with up to 5 years’ imprisonment a person or a religious leader who forms and/or leads a group which, through the propagation of religious ideas and rite, harms citizens’ health and rights, rights of the human being, involves minors in such activities, and incites citizens to refuse to do their social and civil duties.

¹⁹ On the question of the criminal sentences inflicted on Jehovah’s Witnesses for refusing to do military service, see the decisions of the European Court of Human Rights, Stefanov v. Bulgaria, 3 May 2001.

²⁰ Although this possibility is restricted to “members of officially registered religious organisations”, and therefore not to Jehovah’s Witnesses!

²¹ For example the case of the “Chorrord Ishkhanutyun” newspaper, whose equipment was confiscated on 28 March 2001 by officers of the Ministry of the Interior who also treated roughly the owner, Sogher Matevosian; the case of Vahagn Ghukasian, a freelance journalist who claims to have been harassed and threatened on several occasions and mistreated by officers of the Ministry of the Interior, and the case of the Armenian Times whose editor-in-chief was subject to various judicial pressures in March 2001 for an article which cast some doubt on a presidential adviser and another article on those behind the murders of October 1999. The editor-in-chief of the newspaper Fourth Power has also been subject to pressure by the military Prosecutor’s Office in charge with the investigation of the events of October 1999.

²²        The Minsk Group was set up in March 1992. In December 1994 it adopted a tripartite joint chairmanship (United States, Russia and France). In addition to these three countries and to Armenia and Azerbaijan, the members are Germany, Austria, Belarus, Italy, Portugal, Romania, Sweden and Turkey.

²³        The Political Affairs Committee has been seized for a report on “Armenian-Azerbaijan (Mountainous Karabakh) conflict” (Doc. 9239). The motion for a recommendation on “Renunciation of Azerbaijan's militaristic statements on solving the Nagorno-Karabakh conflict by the use of force” (Doc. 9257) was also referred to the Committee.

²⁴        See Doc. 9480 and Recommendation 1570 (2002), report by Mrs Vermot-Mangold on the situation of refugees and displaced persons in Armenia, Azerbaijan and Georgia.

²⁵ Mr Jaskiernia was unable to take part in this visit because of pressing political commitments at national level.