Print
See related documents
Report | Doc. 11786 | 22 December 2008
The implementation by Armenia of Assembly Resolutions 1609 (2008) and 1620 (2008)
Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Summary
In relation to the implementation by Armenia of Assembly Resolutions 1609 (2008) and 1620 (2008), the committee welcomed the establishment, by Presidential decree, of an expert fact-finding group to inquire into the events of 1 and 2 March 2008 and the circumstances that led to them. The establishment of this group, in which both opposition and authorities have nominated experts, was considered an important step regarding the Assembly demand that an impartial and transparent investigation into these events be established, but the committee cautioned that, in the end, it will be the manner in which this group will conduct its work that will determine its credibility in the eyes of the Armenian public.
However, the committee was seriously concerned about the limited progress achieved with regard to the demands of the Assembly concerning the persons deprived of their liberty in relation to the events of 1 and 2 March 2008, especially concerning those charged under Articles 225 and 300 of the Criminal Code of Armenia, and prosecution cases based solely on police testimony without substantial corroborating evidence. In addition, the committee regretted that the authorities had not availed themselves of the opportunity to resolve this issue through all legal means available to them, such as amnesty, pardons and the dropping of charges, as suggested by the Assembly. The committee therefore considered that there are strong indications that the charges against, and convictions of, a significant number of these persons are politically motivated, which it finds unacceptable.
Therefore, notwithstanding developments in some areas, the committee recommended that the Assembly withdraw the voting rights of the members of the Armenian delegation, it being understood that the co-rapporteurs would visit Armenia in January 2009, with a view to reporting back to the committee on the first day of the January 2009 part-session on any progress with respect to the release of persons deprived of their liberty in relation to the events of 1 and 2 March 2008.
A. Draft resolution
(open)1. In its Resolution 1620 (2008) on the implementation by Armenia of Assembly Resolution 1609 (2008), adopted on 25 June 2008, the Parliamentary Assembly
considered that progress had been insufficient, despite the political
will expressed by the Armenian authorities to address the requirements
set up in Resolution
1609 (2008), adopted on 17 April 2008, following the crisis that
ensued after the presidential election of February 2008. The Assembly
therefore addressed a series of concrete demands to the Armenian
authorities and resolved to consider the possibility of suspending
the voting rights of the members of the Armenian parliamentary delegation
to the Assembly at its January 2009 part-session, if the requirements
set up in Resolutions
1609 and 1620 were not met by then.
2. With regard to the requirement to ensure an independent, impartial
and credible investigation into the events of 1 and 2 March 2008,
the Assembly welcomes the establishment by the President of Armenia,
on 23 October 2008, of a “fact-finding group of experts to inquire
into the events of 1-2 March 2008”, following a proposal by the
Commissioner for Human Rights of the Council of Europe. It equally
welcomes the decision of the opposition to fully participate in
the work of this group.
3. The Assembly stresses, however, that it is the manner in which
this group will conduct its work, as well as the access it will
have to information by the relevant state institutions at all levels,
that will ultimately determine its credibility in the eyes of the
Armenian public. The Assembly therefore:
3.1. calls upon all political forces to refrain from politicising,
or interfering in, the work of this fact-finding group;
3.2. calls upon the Armenian authorities to ensure that the
fact-finding group will be given the fullest possible co-operation
by, and full access to information from, all state bodies and officials,
without exception, including those officials that have left office
or have been replaced since the events on 1 and 2 March 2008; the
fact-finding group should be allowed to obtain any clarification
needed with regard to the arrest, prosecution and conviction of
persons related to the events on 1 and 2 March 2008.
4. The Assembly regrets that limited progress has been made by
the Armenian authorities with regard to its earlier demands, as
expressed in Resolutions
1609 (2008) and 1620 (2008), concerning the release of persons deprived
of their liberty in relation to the events of 1 and 2 March 2008.
It notes in particular that, contrary to Assembly demands:
4.1. a significant number of prosecution
cases and convictions was based solely on police testimony, without
substantial corroborating evidence;
4.2. a very limited number of charges under Articles 225 and
300 of the Criminal Code of Armenia has been dropped.
5. The Assembly notes that doubts have been voiced regarding
the nature of the charges brought under Articles 225 and 300 of
the Criminal Code, as well as with regard to the legal proceedings
against those convicted in relation to the events of 1 and 2 March
2008, including by the Council of Europe Commissioner for Human
Rights. The Assembly therefore considers that there are strong indications
that the charges against a significant number of persons, especially
those charged under Articles 225-3 and 300 of the Criminal Code and
those based solely on police evidence, have been politically motivated.
It follows that persons convicted on these charges can be considered
political prisoners.
6. The Assembly regrets that the authorities have not so far
availed themselves of the possibility to use all legal means available
to them, such as amnesty, pardons or the dropping of charges, to
release those who were deprived of their liberty in relation to
the events of 1 and 2 March 2008 and did not personally commit acts of
violence or intentionally order, abet or assist the committing of
such acts. It therefore urges the authorities to consider favourably
further opportunities to this end.
7. In these circumstances, the Assembly will continue assessing
the political will of the Armenian authorities to resolve the issue
of persons detained in relation to the events on 1 and 2 March 2008,
in line with earlier Assembly demands.
8. The Assembly expresses its satisfaction with respect to the
efforts made by the Armenian authorities to initiate reforms in
several other areas, as demanded by the Assembly, in particular
in the fields of media, electoral legislation and the judiciary,
and calls upon the authorities to pursue the co-operation developed
with the relevant Council of Europe bodies in these fields. With
respect in particular to media pluralism and freedom, the Assembly:
8.1. welcomes the proposals made
with a view to ensuring the independence of the media regulatory bodies
in Armenia and calls upon the authorities to fully implement the
forthcoming recommendations of the Council of Europe experts in
this regard;
8.2. takes note of the adoption of amendments to the Law on
Television and Radio that cancels all tenders for broadcasting frequencies
until 2010, when the introduction of digital broadcasting in Armenia will
have been completed. Without pre-empting the merits of this decision,
the Assembly underlines that the technical requirements for the
introduction of digital broadcasting should not be used by the authorities
to unduly delay the holding of an open, fair and transparent tender
for broadcasting licences, as demanded by the Assembly.
9. Notwithstanding positive developments in some areas, the Assembly
finds it unacceptable that persons have been charged and deprived
of their liberty for political motivations and that political prisoners
exist in Armenia. Therefore, despite the positive steps taken towards
the establishment of an independent, transparent and credible inquiry,
the Assembly decides to suspend the voting rights of the members
of the Armenian parliamentary delegation to the Assembly, under
Rule 9, paragraphs 3 and 4.c,
of the Rules of Procedure, until the Armenian authorities have clearly
demonstrated their political will to resolve the issue of persons
deprived of their liberty in relation to the events of 1 and 2 March
2008, in line with its demands, as expressed in Resolutions 1609 (2008) and 1620 (2008).
B. Explanatory memorandum by Mr Colombier and Mr Prescott, co-rapporteurs
(open)1. Introduction
1. On 17 April 2008, the Parliamentary
Assembly adopted Resolution
1609 (2008) on the functioning of democratic institutions in Armenia.
This resolution was adopted following a debate under urgent procedure
in the wake of the political crisis that broke out after the Presidential
election in Armenia, on 19 February 2008.
2. In Resolution 1609, the Assembly set out four concrete requirements to
put an end to the crisis. The Armenian authorities were asked to:
- revoke, in line with the recommendations of the European Commission for Democracy through Law of the Council of Europe (Venice Commission), the amendments made, on 17 March 2008, to the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations;
- initiate immediately an independent, transparent and credible inquiry into the events of 1 March 2008 and the circumstances that led to them;
- release all persons detained on seemingly artificial and politically motivated charges who did not personally commit any violent acts or serious offences;
- start an open and serious dialogue between all political forces in Armenia on the reforms demanded by the Assembly in paragraph 8 of the Resolution with regard to the political system, electoral process, freedom and pluralism of the media, freedom of Assembly, independence of the judiciary and police behaviour.
3. On 25 June 2008, the Assembly adopted Resolution 1620 (2008) on the implementation by Armenia of Assembly Resolution 1609 (2008). In this resolution, the Assembly considered that, despite
the political will expressed by the authorities to address the demands
expressed in Resolution
1609 (2008), progress was insufficient to meet the requirements
outlined in this resolution. The Assembly therefore resolved to
consider the possibility of suspending the voting rights of the
Armenian delegation to the Assembly at its January 2009 part-session
if the requirements of Resolution
1609, as well as those outlined in Resolution 1620, would not be met by then.
4. In relation to the Law on Conducting Meetings, Assemblies,
Rallies and Demonstrations, the Assembly welcomed the changes made
to it in line with recommendations of the Venice Commission, as
demanded in Resolution
1609 (2008). However, it considered that freedom of assembly should
also be guaranteed in practice in Armenia. Therefore, the Assembly
insisted in Resolution
1620 (2008) that the Armenian authorities should ensure that no
undue restrictions, especially with regard to the requested venues,
be placed upon rallies organised by the opposition in compliance
with the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations.
5. With regard to the independent, impartial and credible investigation
into the events of 1 and 2 March 2008, the Assembly considered that,
due to the late establishment of a parliamentary Inquiry Committee
to that effect, it was not in a position, at that time, to evaluate
if the criteria of independence, impartiality and credibility were
met. However, it noted that the format and composition of this committee,
which was dominated by members of the ruling coalition and effectively
boycotted by the opposition, did not per se guarantee its independence
and therefore credibility in the eyes of the Armenian public. The
Assembly therefore asked that, as a minimum, the committee should,
as a rule, aim at a consensual decision-making process and that
voting should be used only as a last resort. Moreover, the Assembly
insisted that the terms of reference of the committee should clearly
state that it has the right to investigate the circumstances that
led to the events on 1 and 2 March 2008, as well as their immediate
aftermath. In addition, it asked that the Human Rights Defender of
Armenia should be invited to participate ex officio in the work
of the committee.
6. With regard to the release of persons deprived of their liberty
in relation to the events of 1 and 2 March 2008, the Assembly expressed
concern that progress on this issue had been too limited to conclude
that the Assembly’s demands were fully met. In Resolution 1620 (2008), the Assembly therefore demanded that all cases still
under investigation be closed or promptly brought before the courts,
in order to ensure the right to a fair trail within a reasonable
time in compliance with the case law of the European Court of Human
Rights. Moreover, it insisted that cases under articles 300 and
225 of the Criminal Code of Armenia should be dropped unless there
was strong evidence that the accused had personally committed serious
violent crimes. Furthermore, the Assembly considered that verdicts
based solely on police testimony without corroborating evidence
were unacceptable to the Assembly. In relation to this issue, the
Assembly also took note of the proposed amendments to articles 225,
2251, 301 and 3011 of
the Criminal Code and urged the National Assembly of Armenia to
take into account the negative advice given on them by the Venice
Commission.
7. Recalling the need for a pluralistic media environment in
Armenia and taking into account the decision of the European Court
of Human Rights concerning the denial of a broadcasting license
to the A1+ television channel, the Assembly, in Resolution 1620 (2008), called upon the Armenian authorities to now ensure
an open, fair and transparent licensing procedure.
8. In the opinion of the Assembly, the continued detention of
opposition supporters in relation to the events of 1 and 2 March
2008 was a point of contention that continued to strain the relations
between the opposition and authorities and hinder the start of a
constructive dialogue on the reforms needed for Armenia. Therefore, also
to foster the reconciliation process between the authorities and
opposition, the Assembly, in Resolution 1620
(2008), urged the Armenian authorities to consider all legal
means available to them, including amnesty, pardons and dismissal
of charges, to release all persons detained in relation to the events
on 1 and 2 March 2008, with the exception of those persons that
had personally committed, abetted or organised grave violent crimes.
9. While the Assembly gave the Armenian authorities until the
January 2009 part-session to comply fully with its demands, we were
of the view that tangible results should already be achieved before
that date, especially with regard to the release of persons deprived
of their liberty in relation to the events of 1 and 2 March 2008,
as well as the independent, transparent and impartial inquiry into
these events. Therefore, on our suggestion, the Assembly decided,
in Resolution 1620 (2008), to invite the Commissioner for Human Rights of the
Council of Europe to visit Armenia and to report to the Monitoring
Committee, at its meeting in September 2008, on the progress achieved
by the Armenian authorities with regard to these two issues.
10. The Commissioner for Human Rights visited Yerevan from 13
to 15 July 2008. During his visit, he proposed, inter alia, a set
of concrete recommendations to resolve the impasse between the authorities
and opposition with regard to the Inquiry Committee set up by the
National Assembly to investigate the events of 1 and 2 March 2008,
as well as the circumstances that led to them. 
11. The visit of the Commissioner for Human Rights was followed
by an official visit of the President of the Parliamentary Assembly,
on 23-24 July 2008. During his visit, the President encouraged the
Armenian authorities to fully implement Resolutions 1609 and 1620 and urged them promptly to take concrete and tangible
measures with regard to the parliamentary Inquiry Committee and
the release of persons deprived of their liberty in relation to
the events on 1 and 2 March 2008. During his visit, the President
fully supported the proposals made by the Commissioner for Human
Rights to resolve the impasse with regard to the Inquiry Committee.
Furthermore, he stressed that the detention of persons in relation
to the events of 1 and 2 March 2008, other than those who had personally
committed grave violent crimes, was unacceptable to the Assembly, and
therefore urged the authorities to use every means available to
them to release those persons without delay.
12. The Commissioner for Human Rights informed the Monitoring
Committee about the findings of his July visit at its meeting on
11 September 2008. Following the presentation of his written report
in October 2008, the Monitoring Committee issued a public statement
stressing that it was extremely alarmed about the Commissioner’s
findings and conclusions which showed that only limited progress
had been achieved regarding key demands of the Assembly. While noting
the positive steps made regarding establishment of an independent
and credible inquiry, the Monitoring Committee remained extremely
concerned regarding persons deprived of their liberty in relation
to the events on 1 and 2 March 2008 and regretted that the Armenian authorities
did not consider the possibility of amnesty, pardons, or any other
legal means available to them, to resolve their situation. The Monitoring
Committee therefore asked the Commissioner for Human Rights to make
a follow-up visit to Yerevan and to inform the committee at its
meeting on 17 December 2008 about the progress made by the Armenian
authorities regarding the need for an independent inquiry and the
release of persons deprived of their liberty in relation to the
events of 1 and 2 March 2008.
13. The Commissioner visited Yerevan from 20 to 22 November 2008.
We held a working meeting with him a week later, on 1 December 2008,
in Paris, when he shared his findings and conclusions, which we
have taken into account for the preparation of the present report.
2. Implementation of Assembly requirements
2.1. Establishment of an independent, transparent and credible inquiry into the events on 1 March 2008 and the circumstances that led to them
14. On 16 June 2008, the National
Assembly of Armenia adopted a resolution in which it established
a parliamentary Ad Hoc Committee “to conduct an inquiry into the
events of 1 and 2 March 2008, as well as the causes that led to
them”. This Inquiry Committee is composed of two members of each
of the five factions in the current parliament as well as one member
on behalf of the independent members of parliament. Furthermore,
the resolution establishing the Inquiry Committee allowed for the
participation of representatives of extra-parliamentary forces in
the work of the committee, albeit only with a consultative vote.
The fact that four of the five factions in the parliament belong
to the ruling coalition raised questions with regard to the possibility
of the committee to conduct its inquiry independently and impartially.
While noting that, due to the recent constitution of the Inquiry
Committee at that time, it was not in a position to evaluate if
the criteria of independence, transparency and credibility had been
met, the Assembly considered, in Resolution 1620 (2008), that the format and composition of the Inquiry Committee
did not per se guarantee its independence and impartiality and,
therefore, its credibility in the eyes of the Armenian public.
15. Following his July 2008 visit to Armenia, the Commissioner
for Human Rights concluded that the parliamentary Inquiry Committee
would not have the required impartiality and credibility demanded
by the Assembly as a result of its domination by the parties belonging
to the ruling coalition and, as a result, its boycott by the main
opposition forces loyal to Levon Ter-Petrossian. In order to resolve
the impasse and ensure an independent and credible inquiry, the
Commissioner therefore proposed that a separate small group of independent
experts should be set up to establish the facts with regard to the
events on 1 and 2 March 2008 and the circumstances that led to them.
This group should be composed on the basis of parity between opposition
and ruling coalition and mutual consensus on its members. The parliamentary
Inquiry Committee would then be tasked with drawing the political
conclusions based on the findings of the expert group.
16. During his visit, the President of the Assembly fully supported
the proposals of the Commissioner and noticed with satisfaction
that both the authorities, as well the opposition supporting Mr
Levon Ter-Petrossian, indicated that, in principle, they supported
the compromise proposal formulated by the Commissioner.
17. The Commissioner also proposed an expert to provide advice
to the Armenian authorities on the methodology of setting up such
an expert group, as well as on its terms or reference and operational
modalities. Specific areas of attention included the need to enhance
the independence of the expert group and of its individual members,
as well as the transparency of its work and publication of its findings.
18. On 23 October 2008, the President of Armenia issued the order
setting up the “fact-finding group of experts to inquire into the
events of 1-2 March 2008 and its statute” .
According to this order, the fact-finding group will be tasked with
establishing the causes of the events of 1 and 2 March 2008, assessing
the lawfulness and proportionality of the activities of police officers
and officials in relation to these events and establishing the circumstances
that led to the death of 10 persons during the events. The expert
group will be composed of five members, two nominated by the governing
coalition, one by the Heritage party, one by the political movement headed
by Mr Levon Ter-Petrossian and one member nominated by the Human
Rights Defender of Armenia.
.
According to this order, the fact-finding group will be tasked with
establishing the causes of the events of 1 and 2 March 2008, assessing
the lawfulness and proportionality of the activities of police officers
and officials in relation to these events and establishing the circumstances
that led to the death of 10 persons during the events. The expert
group will be composed of five members, two nominated by the governing
coalition, one by the Heritage party, one by the political movement headed
by Mr Levon Ter-Petrossian and one member nominated by the Human
Rights Defender of Armenia. 19. The establishment of this fact-finding group was welcomed
by the international community, including by us. While welcoming
the establishment of this fact-finding group as an important step
towards meeting the Assembly’s demands, we also stressed that that
the manner in which this group will conduct its work, as well as
the access it will have to the relevant state institutions at all
levels, will ultimately determine whether or not the inquiry could
be seen as being credible in the eyes of the Armenian public.
20. The presidential order gives the fact-finding group significant
powers to conduct its work. It has the right to demand and obtain
information from “any state or local self-government body or official”;
it can demand the competent state bodies to conduct investigations
or prepare expert opinions and can invite international experts
to participate in its work. The fact-finding group can also request
information and clarifications from individuals and organisations,
but only with their consent. It does not have the right to question
judges. Taking into account that some of the persons involved in
the events that took place on 1 and 2 March have completed their
term of office or have been replaced by the authorities, it is important
that the authorities make clear that the obligation for state bodies
and officials to provide information to the expert group also includes
former officials who were in function or held office at the time
of the events on 1 and 2 March 2008. Moreover, the restriction on
seeking clarifications from judges should clearly not be interpreted
as preventing the expert group from obtaining all necessary information
and clarification with regard to the arrest, prosecution and conviction of
persons related to the events on 1 and 2 March 2008.
21. Questions have been raised whether the expert group has the
constitutional authority to question the current and previous Presidents
of Armenia. Given the important role that these persons played in
the events on, and after, 1 and 2 March 2008, we sincerely hope
that they will be willing to testify before the expert group, if
so invited, and that no legal obstacles will be raised in order
to prevent them from doing so.
22. The expert group will present its report to the parliamentary
Inquiry Committee. Individual members have the right to attach minority
opinions to the report if they so wish. To ensure the transparency
of the fact-finding group - an important requirement for its credibility
- the report will be made public, in the manner and to the extent
decided by the expert group, at the moment of its presentation to
the parliamentary Inquiry Committee. In order to avoid the possibility
that the work of the members of the expert group will be influenced
by political considerations and media reports on their work, it
was decided that the proceedings of the expert group would remain
confidential until the publication of the report. Some opposition
members have questioned the need for the expert group’s proceedings
to be confidential. However, since the report will be made public
at the moment of its presentation and individual members can attach
minority opinions, we do not consider that the confidentiality of
the group’s work would necessarily run counter to the Assembly’s
demand that the inquiry into the events of 1 and 2 March 2008 and
its circumstances, be transparent.
23. Despite some reservations with regard to the rights and powers
of the fact-finding group, the Heritage Party and the Armenian National
Congress (HAK) - the coalition of opposition parties supporting
Mr Levon Ter-Petrossian which was formally founded on 1 August 2008
- eventually decided to participate in the expert fact-finding group.
The members appointed on behalf of the governing coalition in the
expert group are Mr Gevorg Tovmasyan, a former high-level official
in the General Prosecutor’s Office and Mr Robert Avagyan, former
law professor and former member of the Justice Council. The Armenian
National Congress nominated Mr Andranik Kocharian, former Deputy
Minister of the Interior and of Defence during Mr Levon Ter-Petrossian’s
presidency, and the Heritage Party nominated Ms Seda Safarian, a
well-known trial lawyer, who represented several of the opposition
supporters detained after the events of 1 and 2 March 2008. The
Armenian Human Rights Defender nominated Mr Vahe Stepanyan, his
Chief of Staff and a former Minister of Justice, as his representative
in the expert group. The expert group, which will meet on a daily
basis, elected Mr Stepanyan as its Chair during its first meeting,
on 11 November 2008.
24. Some opposition parties have raised questions about the constitutionality
of the presidential order setting up the expert fact-finding group
and the Heritage Party has indicated that it may challenge the constitutionality
of the order in the Constitutional Court. Without wishing to pre-empt
the merits of these claims, we would urge the opposition parties
to participate constructively, and in good faith, in the work of
the expert fact-finding group and not to undermine its work on the
basis of strictly procedural grounds.
25. The establishment of the expert fact-finding group is an important
step towards meeting the demands of the Assembly. The work of this
group is crucial in order to bring clarity to the events on 1 and
2 March 2008. It can play an important role in establishing the
basis for the necessary reconciliation between opposition and the authorities
which, alone, will enable Armenia to address the challenges it faces
as a result of the political crisis. However, we would stress that
the group’s establishment is only a first step, albeit a crucial
one, towards meeting the Assembly’s demand. It is the result of
the work of this expert group that will count, and the manner in
which this group will conduct its inquiry which will be decisive
for its credibility in the eyes of the Armenian public. We therefore
call upon the authorities not to interfere in the work of the fact-finding
group and to ensure that it will be given the fullest co-operation
possible by all state bodies and officials, including those that
have left office or have been replaced since the events of 1 and
2 March 2008.
2.2. Release of persons deprived of their liberty in relation to the events of 1 and 2 March 2008
26. We welcome the fact that the
proposed amendments to Articles 225, 2251,
301 and 3011 of the Criminal Code of
Armenia were not adopted by the National Assembly following the
negative advice of the State and Legal Affairs Committee of the
National Assembly of Armenia, on the basis of the negative opinion
by the Venice Commission of the Council of Europe on these amendments.
27. Regrettably, very little progress has been made with respect
to the Assembly’s demands regarding the release of persons deprived
of their liberty in relation to the events of 1 and 2 March 2008.
28. As was the case when preparing our previous report, the information
we have received regarding the number of cases and persons deprived
of their liberty has been at times confusing and contradictory.
According to the latest data we have at our disposal, of the persons
charged in relation to the events of 1 and 2 March 2008, 87 persons
have been found guilty by the courts, of which 45 have received
firm prison sentences and 42 conditional sentences. In 20 cases,
the charges were dropped and in 5 other cases the persons accused were
acquitted by the courts. In addition, 13 persons are still detained
while their cases are pending before a court; 7 persons are in detention
on remand without their cases having been brought before a court
at all. This latter category includes the three parliamentarians
whose immunity was lifted by the National Assembly of Armenia.
29. With regard to these 7 cases that have not yet been brought
before a court, the investigation by the Prosecutor General was
completed early in October – nearly 7 months after the persons in
question were arrested – and their files were transferred to the
defence for examination before formal indictment before a court,
in line with Armenian legislation. On 14 November 2008, the court
extended the deadline for the defence to study the charges until
1 December 2008. On 1 December 2008, the formal indictment was made
before the court and published by the Prosecutor General’s Office.
30. We would like to highlight that among the seven cases that
are only now brought before the court are those of three parliamentarians
whose parliamentary immunity was lifted by the National Assembly
on the basis of evidence provided by the Prosecutor General that
would indicate that these persons had committed serious crimes.
However, it took the prosecution seven more months to collect evidence
and finalise the indictment. It would thus appear that the National
Assembly had taken its decision to lift the parliamentary immunity
of 3 of its members on very summary evidence at best, which could
indicate that political motivations played a role in this decision.
31. Section 11 of the Criminal Code of Armenia deals with crimes
against the state power. Article 300 of the Criminal Code makes
the usurpation of state power, i.e. the seizure of state power in
violation of the Constitution of Armenia, or actions aimed at overthrowing
the Constitutional order, punishable with a prison term of 10 to
15 years.
32. Article 225 of the Criminal Code of Armenia (in the Chapter
“Crimes against public security”) deals with mass disorder. According
to Article 225-1, the organisation of mass disorder, accompanied
by violence, pogroms, arson, destruction of property, use of firearms,
explosives or explosive devices, or armed resistance against a representative
of the authorities, is punishable with a prison term of 4 to 10
years. Participation is such actions of mass disorder is punishable
with a prison term of 3 to 8 years (article 225-2). However, Article 225-3
considers that, in the aggravated case that the organisation of,
or participation in, such actions of mass disorder is accompanied
by murder, the crime is punishable with a prison term of 6 to 12
years.
33. According to our information, 79 persons have been charged
under Article 225, 19 of whom with aggravated circumstances under
the third paragraph of Article 225. In addition, a total of 28 persons
have been charged under Article 300. In all but one case the persons
charged under Article 300 have also been charged under Article 225.
In the 7 cases for which the formal charges were brought on 1 December
2008, all persons have been charged under Articles 300 and 225-3.
34. In our previous reports, we already mentioned that Articles
225 and 300 of the Criminal Code of Armenia are problematic, as
they allow for broad interpretation, leave excessive discretion
to the prosecutor and “fail to give clear guidance on the dividing
line between legitimate expressions of opinion and incitement to
violence“. In Resolution
1620 (2008), the Assembly therefore considered that “the cases under
Articles 300 and 225 of the Criminal Code should be dropped unless
there is strong evidence that the accused have personally ordered,
abetted or assisted the committing of such acts”.
35. In addition to the problematic nature of Article 300, until
now, we have not received any credible evidence from the Armenian
authorities that would indicate that the events of 1 and 2 March
2008 were aimed at the usurpation of state power within the meaning
of Article 300.
36. Despite the lengthy investigation into the causes of the 10
deaths during the events on 1 and 2 March 2008, no charges have
as yet been brought against any person, including police officers,
for the killing of these persons. This is despite conclusive evidence
that at least 3 persons died from projectiles fired from police weapons.
We are seriously concerned that, to date, no one has been charged
for the killing of these persons.
37. Article 225-3 explicitly refers to the aggravated condition
of murder. However, taking into account the lack of clarity about
the exact responsibility for the 10 deaths on 1 and 2 March 2008,
and, as a result, the fact that no person has been charged for these
deaths, let alone for murder, we find it difficult to understand
how charges under the aggravated clause of murder in Article 225-3
can be justified.
38. On the basis of our observations regarding articles 225-3
and 300, we can only conclude that the charges brought under these
articles were politically motivated and, unless the Armenian authorities
can provide us with detailed and conclusive evidence to the contrary
for each individual case, that persons convicted on these charges
should be considered political prisoners.
39. We are seriously concerned about a letter of the Head of the
Special Investigation Service, sent on 5 March 2008 to the Regional
Prosecutor in Vayots Dzor (in Southern Armenia), in which the Regional Prosecutor
was instructed, inter alia, to question opposition supporters about
their participation in the protest rallies and find out details
regarding their whereabouts, contacts, family members, as well as
their ownership of property. In addition, the Regional Prosecutor
was to locate taxi and bus drivers who transported opposition supporters
to Yerevan and find out who accompanied them and who paid for the
transport. Court permission to obtain wire-taps on telephone conversations
of campaign managers of Mr Levon Ter-Petrossian were also to be
obtained. The authorities confirmed the authenticity of this letter.
Similar instructions were reportedly also sent to other regional
prosecutors and law enforcement agencies, including the National
Security Service. This letter seems to give credence to the assertion
that persons were targeted because of their political beliefs, or association
with opposition supporters, in the aftermath of the events of 1
and 2 March 2008.
40. In Resolution 1620
(2008), the Assembly considered that verdicts based solely
on police testimony without corroborating evidence, were unacceptable.
In his report to the Monitoring Committee on 11 September, the Commissioner
for Human Rights noted that at least 19 prosecution cases were based
solely on police testimony, despite the Assembly’s concerns in this
regard. This, in our opinion, is another indication that the charges
brought against and convictions of these persons may have been politically
motivated.
41. We recall that, in Resolution
1620 (2008), the Assembly considered that the continued detention
of opposition supporters in relation to the events of 1 and 2 March
2008 was a point of contention that continued to strain the relations
between the opposition and authorities and hinder the start of a
constructive dialogue on the reforms demanded by the Assembly. Therefore,
the Assembly urged the Armenian authorities to consider all legal
means available to them, including amnesty, pardons and dismissal
of charges, to release all persons detained in relation to the events
on 1 and 2 March 2008, with the exception of those persons that
personally committed, abetted or organised grave violent crimes.
42. We regret that, at the time of drafting this report, the Armenian
authorities have not made use of the legal means suggested by the
Assembly to release those persons deprived of their liberty in relation
to the events of 1 and 2 March 2008.
43. Given the fact that persons have been charged and convicted
for their political beliefs, given the lack of any progress with
regard to the Assembly’s demands related to the person charged under
Articles 300 and 225 or solely on the basis of police evidence and
given the absence of any act of amnesty, pardon or dismissal of charges,
we can only but conclude that the Armenian authorities do not have
the requisite political will to resolve the question of persons
detained in relation to the events on 1 and 2 March 2008.
2.3. Media reform and pluralist media environment
44. In Resolution 1609 (2008), the Assembly considered that the independence from
any political interest of both the National Television and Radio
Commission and the Public Television and Radio Council must be guaranteed.
In addition, the composition of these bodies should be revised in
order to ensure that they are truly representative of the Armenian
society.
45. In addition, in Resolution
1620 (2008), the Assembly recalled that there is a need for a pluralistic
media environment in Armenia and, referring to the Strasbourg Court
judgment concerning the denial of a broadcasting licence to the
A1+ channel, called upon the authorities to now ensure an open,
fair and transparent licensing procedure, in line with the Guidelines
adopted by the Committee of Ministers of the Council of Europe,
on 26 March 2008, and with the case law of the Court.
46. As mentioned in our previous report (Doc. 11656 (2008)), a public hearing was organised by the National Assembly
of Armenia on the issue of media reform, with the participation
of representatives of the authorities, NGOs and opposition. This
public hearing resulted in a legislative package that was sent to
the Council of Europe for opinion, as well as to the establishment
of a parliamentary working group on the reform of the Law on Television
and Radio.
47. Part of the legislative package concerns the implementation
of an open and transparent tender procedure for the composition
of the National Television and Radio Council and for the composition
of the Public Television and Radio Commission. This tender procedure
aims at ensuring the independence of the members and, as a result,
the work of these two bodies. The preliminary opinion of the Council
of Europe experts with regard to this new tender process is generally
positive. As noted in previous reports, the lack of independence
of these two main regulatory bodies for the media raises concerns
about possible government influence over the media that are regulated
by them. We therefore welcome the efforts of the authorities in
this respect. However, we note that the proposed amendments do not
explicitly stipulate that the two regulatory bodies should be representative
and reflect a broad cross-section of the Armenian society. We would
therefore recommend that further amendments are made to the Law
on TV in this respect.
48. On 9 September 2008, the National Assembly adopted an amendment
to the Law on Television and Radio that cancels all tenders for
broadcasting frequencies until 2010, when the introduction of digital broadcasting
in Armenia will have been completed. The amendment extends the validity
of all current licenses until January 2010. While the government
argues that the adoption of this amendments was needed to address the
technical requirements related to the introduction of digital broadcasting,
the opposition has decried these amendments as an attempt to avoid
the organisation of an open, fair and transparent licensing procedure,
as demanded by the Assembly, so as to keep A1+ off the air.
49. We take note of the ongoing discussions between the authorities,
the National Assembly, and Council of Europe experts with regard
to the proposed legislative reform package, as well as the already
adopted amendments to the Law on Television and Radio that cancel
tenders for broadcasting licenses until 2010. We understand that
the Council of Europe will provide an expert opinion on the revised
amendments to the Law on Television and Radio and is ready to provide
a “spectrum expert” to analyse the technical implications of the
introduction of digital broadcasting. In addition, the amendments
to the Law on Television and Radio with regard to the cancellation
of tenders for broadcasting licences was also discussed by the Committee
of Ministers in December 2008, in the context of the discussion
on the execution by Armenia of the above-mentioned judgment of the
Court in the case of A1+.
50. We do not wish to pre-empt the ongoing co-operation and discussions
on these issues between the Armenian authorities and the relevant
Council of Europe departments. We therefore intend to analyse in extenso the media reform and
its implications on the pluralism of the media environment in our
next report on Armenia in the framework of the regular ongoing monitoring
procedure of the Assembly. However, we would like to stress that
the technical implications of the introduction of digital broadcasting
should not be used as a pretext to delay unduly the holding of an
open, fair and transparent licensing tender, as requested by the Assembly.
2.4. Freedom of assembly
51. In Resolution 1620 (2008), the Assembly welcomed the adoption of amendments to
the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations
in line with the recommendations of the Venice Commission and Assembly
demands. However, it also urged the Armenian authorities to guarantee
freedom of assembly in practice and therefore to ensure that no
undue restrictions, especially with regard to the venues requested,
be placed upon rallies organised by the opposition in compliance
with the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations.
52. We welcome the fact that opposition demonstrations generally
have taken place unimpeded in Yerevan since the adoption of the
last resolution. However, we note that, initially, this was based
on last minute agreements between the organisers and the police
and not on an explicit authorisation to hold the rally by the Yerevan
city administration. Subsequent demonstrations were duly authorised
in advance. We nonetheless note that a number of spontaneous demonstrations
were broken up by the police. We therefore urge the authorities
to pursue their efforts and take all necessary measures to ensure
that the fundamental freedom of assembly is fully respected in Armenia.
53. At a rally of the Armenian National Congress, on 17 October
2008, Mr Levon Ter-Petrossian announced that he would temporarily
halt his campaign of anti-government protests in the light of the
recent developments in the relations between Armenia and Turkey,
as well as with regard to the issue of the settlement of the Nagorno
Karabakh conflict. He announced that this decision was taken in
order not to undermine the position of President Sargsyan in these
important developments for Armenia.
2.5. Other reforms needed to address the underlying causes of the political crisis
54. In Resolution 1609 (2008), the Assembly called upon all political forces to initiate
an open and serious dialogue on a number of reforms which it considered
crucial in order to address the underlying causes of the crisis
that ensued after the presidential election in February 2008. These
reforms related to the political system and electoral process, freedom
and pluralism of the media, freedom of assembly, independence of
the judiciary and police.
55. In our report on the “Implementation by Armenia of Assembly Resolution 1609 (2008)” (Doc. 11656 (2008)), we welcomed and highlighted the series of initiatives
taken by the authorities with regard to initiating the reforms demanded
by the Assembly. We welcome that, since the adoption of Resolution 1620 (2008), the Armenian authorities have pursued their efforts
in bringing forward these reforms. In addition to the developments
in the field of the media described above, we note in particular
the ongoing efforts to reform the electoral system, as well as the
close co-operation between the Armenian authorities and the relevant
Council of Europe departments on the reform of the judiciary, with
a view to strengthening its independence.
56. That said, in the period since the adoption of Resolution 1620 (2008) we have focused our efforts and attention on the two
key demands of the Assembly, notably the start of an independent,
transparent and credible inquiry into the events on 1 and 2 March
and the issue of persons deprived of their liberty in the context of
these events. The satisfactorily resolution of these two major issues
is, in our opinion, indispensable for the successful implementation
of any other reform to comply with the Assembly’s demands. At this
stage, we are not therefore in a position to make an in-depth analysis
of the progress on these other reforms demanded by the Assembly.
We intend to come back to these issues in an addendum to this report
on the basis of a possible visit to the Armenia in January 2009,
should such a visit be helpful to achieve tangible progress with
regard to the outstanding question of the release of persons deprived
of their liberty in relation to the events of 1 and 2 March 2008.
3. Conclusions
57. We welcome the setting-up of
the independent fact-finding group to investigate the events on
1 and 2 March 2008 and the circumstances that led to them, as well
as the decision of the opposition to fully participate in its work.
This is an important step in ensuring that an independent, transparent
and credible inquiry into the events of 1 and 2 March will be held
as demanded by the Assembly.
58. In this respect, we would like to pay tribute to the significant
contribution to the setting up of this group made by the Commissioner
for Human Rights of the Council of Europe.
59. That said, we underline that it is the result of the work
of this expert group that counts, and the manner in which this group
will conduct its inquiry which will ultimately be decisive for its
credibility in the eyes of the Armenian public. We therefore call
upon all political forces to refrain from politicising, or interfering
in, the work of this fact-finding group. In addition, we call upon
the Armenian authorities to ensure that the group will be given
the fullest possible co-operation by, and full access to information
from, all state bodies and officials, without exception, including
those officials that have left office or changed functions since
the events on 1 and 2 March 2008.
60. We deeply regret that no such similar progress has been made
with regard to the release of persons have been deprived of their
liberty in relation to the events on 1 and 2 March 2008.
61. We note with satisfaction that the cases of the 7 opposition
members have finally been brought before the courts. However, we
regret the nature of the charges that have been brought against
them under Articles 225-3 and 300 of the Criminal Code of Armenia
and question the strength of the evidence purportedly warranting
their prolonged pre-trial detention, as well as the lifting of the
immunity of 3 of them who are members of the National Assembly.
62. No tangible progress has been made in relation to the key
Assembly demands that no convictions should take place solely on
the basis of police testimony, without substantial corroborating
evidence, and that the charges under Articles 225 and 300 of the
Criminal Code of Armenia should be dropped unless there is strong evidence
that the persons concerned personally committed acts of violence
or intentionally ordered, abetted or assisted the committing of
such acts. In this respect, we also note the concerns raised by
the Commissioner for Human Rights in his report regarding the legal
proceedings against many of those convicted in relation to the events
of 1 and 2 March 2008.
63. We regret to conclude that there are strong indications that
the charges against a significant number of persons, especially
those charged under Articles 225-3 and 300 of the Criminal Code
and those based solely on police evidence, have been politically
motivated. It follows that the persons convicted on these charges
can be considered political prisoners.
64. We further regret that the authorities have not so far availed
themselves of the possibility to use all legal means available to
them, such as amnesty, pardons or the dropping of charges, to release
those who were deprived of their liberty in relation to the events
of 1 and 2 March 2008 and who did not personally commit acts of
violence or intentionally order, abet or assist the committing of
such acts.
65. We therefore can only but conclude that the Armenian authorities
lack the necessary political will to resolve the question of persons
detained in relation to the events on 1 and 2 March 2008
66. We welcome the efforts made by the Armenian authorities to
initiate reforms in other areas demanded by the Assembly, in particular
in the fields of media, electoral legislation and the judiciary.
We call upon the authorities to continue the co-operation developed
with the relevant Council of Europe bodies in these fields. In the
field of media pluralism and freedom, we welcome the proposals made
with a view to ensuring the independence of the media regulatory
bodies in Armenia, and call upon the authorities to fully implement
the forthcoming recommendations of the Council of Europe experts
in this regard. In relation to the postponement of tenders for broadcasting
frequencies until 2010, and without wishing to pre-empt the merits
of the arguments advanced to justify this decision, we stress that
the technical requirements for the introduction of digital broadcasting
should not be used to unduly delay the holding of an open, fair
and transparent tender for broadcasting licences, as demanded by
the Assembly.
67. Notwithstanding positive developments in some areas, it is
unacceptable that persons have been charged and deprived of their
liberty for political motivations and that political prisoners exist
in Armenia. Therefore, despite the positive steps taken towards
the establishment of an independent, transparent and credible inquiry,
we recommend that the Assembly suspends the voting rights of the
members of the Armenian Parliamentary delegation to the Assembly,
under Rule 9, paragraphs 3 and 4.c,
of the Rules of Procedure, until the Armenian authorities have clearly
demonstrated their political will to resolve the issue of persons
deprived of their liberty in relation to the events of 1 and 2 March
2008, in line with Assembly demands, as expressed in Resolutions 1609 (2008) and 1620 (2008).
Reporting committee: Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee)
Reference to committee: Resolution No. 1115 (1997)
Draft resolution unanimously adopted by the committee on 17 December 2008
Members of the committee: Mr Serhiy Holovaty (chairperson), Mr György Frunda (1st vice-chairperson), Mr Konstantin Kosachev (2nd vice-chairperson), Mr Leonid Slutsky (3rd vice-chairperson), Mr Aydin Abbasov, Mr Avet Adonts, Mr Pedro Agramunt, Mr Miloš Aligrudić, Mrs Meritxell Batet Lamaña, Mr Ryszard Bender, Mr József Berényi, Mr Aleksandër Biberaj, Mr Luc van den Brande, Mr Mevlüt Çavuşoğlu, Mr Sergej Chelemendik, Ms Lise Christoffersen, Mr Boriss Cilevičs, Mr Georges Colombier, Mr Telmo Correia, Mr Valeriu Cosarciuc, Mrs Herta Däubler-Gmelin, Mr Joseph Debono Grech, Mr Juris Dobelis, Mrs Josette Durrieu, Mr Mátyás Eörsi, Mrs Mirjana Ferić-Vac, Mr Jean-Charles Gardetto, Mr József Gedei, Mr Marcel Glesener, Mr Charles Goerens, Mr Andreas Gross, Mr Michael Hagberg, Mr Holger Haibach, Ms Gultakin Hajiyeva, Mr Michael Hancock, Mr Davit Harutyunyan, Mrs Olha Herasym’yuk, Mr Andres Herkel, Mr Raffi Hovannisian, Mr Kastriot Islami, Mr Michael Aastrup Jensen, Mr Miloš Jevtić, Mrs Evguenia Jivkova, Mr Hakki Keskin, Mrs Katerina Konečná, Mr Andros Kyprianou, Mr Jaakko Laakso, Mrs Sabine Leutheusser-Schnarrenberger, Mr Göran Lindblad, Mr René van der Linden, Mr Eduard Lintner, Mr Younal Loutfi, Mr Pietro Marcenaro, Mr Mikhail Margelov, Mr Bernard Marquet, Mr Dick Marty, Mr Miloš Melčák, Mrs Nursuna Memecan, Mr João Bosco Mota Amaral, Mr Theodoros Pangalos, Ms Maria Postoico, Mr Christos Pourgourides, Mr John Prescott, Mr Andrea Rigoni, Mr Armen Rustamyan, Mr Indrek Saar, Mr Oliver Sambevski, Mr Kimmo Sasi, Mr Andreas Schieder, Mr Samad Seyidov, Mrs Aldona Staponkienė, Mr Christoph Strässer, Mrs Chiora Taktakishvili, Mr Mihai Tudose, Mr Egidijus Vareikis, Mr Miltiadis Varvitsiotis, Mr José Vera Jardim, Mrs Birutė Vėsaitė, Mr Piotr Wach, Mr Robert Walter, Mr David Wilshire, Mrs Renate Wohlwend, Mrs Karin S. Woldseth, Mr Boris Zala, Mr Andrej Zernovski.
N.B.: The names of the members who took part in the meeting are printed in bold
Secretariat of the committee: Mrs Chatzivassiliou, Mr Klein, Ms Trévisan, Mr Karpenko