B Explanatory
memorandum by Mr Prescott and Mr Fischer, co-rapporteurs
1 Introduction
1. The Parliamentary Assembly adopted its previous
Resolution 1677 (2009) on
the functioning of democratic institutions in Armenia on 24 June
2009. In that resolution, the Assembly considered that the release
of many, if not all, persons arrested in relation to the March 2008
events by way of a general amnesty, as well as the assurances given
by the authorities that a credible investigation into the events
of March 2008 would be conducted, were a clear indication of the
willingness of the authorities to overcome the political crisis and
to turn to a new page in Armenia’s democratic development.
2. In
Resolution 1677
(2009), the Assembly also invited the rapporteurs to
pay specific attention to the remaining persons in detention, to
the issue of the need for a transparent and credible investigation
into the March 2008 events and its causes, to the ongoing investigation
into the circumstances and responsibility for the ten casualties
that occurred during these events, as well as to the respect, in
practice, of the right to freedom of assembly. In addition, the
Assembly urged the authorities to implement, without delay, profound reforms
of the police,
inter alia with
a view to establishing a proper public oversight mechanism, and
of the judiciary, with a view to ensuring its independence.
3. Since the adoption of
Resolution
1677 (2009) the political developments in the country
have been followed closely by the rapporteurs and have been the
topic of a number of information notes submitted to the Monitoring
Committee. In addition, the reform package initiated by the authorities
was the subject of a special hearing in the Monitoring Committee,
on 5 October 2010, to which a range of opposition parties (parliamentary and
extra-parliamentary) were invited to participate. Moreover, the
co-rapporteurs visited the country from 15 to 18 March and from
19 to 21 July 2011. During the whole reporting period, the co-rapporteurs
enjoyed extensive and constructive co-operation from the authorities
as well as from representatives of all political forces, both parliamentary
and non-parliamentary, for which they wish to express their sincere
appreciation and gratitude.
4. When the Assembly adopted
Resolution 1677 (2009), we expected
a swift normalisation of the political environment in Armenia, which
would have allowed us to return to monitoring the full range of
commitments and obligations of Armenia. Regrettably, the issues
of the remaining prisoners and the investigation into the ten deaths
of March 2008 have dominated the political environment and agenda
for most of the reporting period and continued to poison the political
climate. However, to our great satisfaction, a number of important developments
took place in spring 2011, which addressed the remainder of the
outstanding issues with regard to the March 2008 events.
5. On 20 April 2011, President Sargsyan ordered the law enforcement
agencies to give a renewed impetus to the stalled investigations
into the March 2008 events and especially into the responsibility
for the ten casualties. In addition, requests by the opposition
party Armenian National Congress (ANC)
Note to
hold rallies on Liberty Square – the venue of the 2008 protests,
which had been off-limits for opposition demonstrations since then
– were granted by the authorities. This was followed, on 26 May
2011, by the adoption by the National Assembly, on the initiative
of President Sargsyan, of a new general amnesty. As a result of
this amnesty, the second one in three years, all remaining persons
in prison as a result of the March 2008 events were released. This
amnesty was followed by public declarations from the main opposition
forces that their conditions had been met and that they were now
ready to engage in a dialogue with the authorities on the democratic development
of the country. This in turn effectively normalised the political
environment – although it remains antagonistic – and finally closed
this painful chapter in Armenia’s history. These important developments
come at a critical moment for the country as it is gearing up towards
the parliamentary elections in spring 2012. These elections will
be crucial in order to rebuild the trust of the Armenian people
in the political system and will be an opportunity to create the
genuinely pluralist and inclusive political climate necessary to
address the important challenges that Armenia is facing.
6. In this report, we intend to take stock of the main developments
with regard to the outstanding issues of the March 2008 events,
as well as of the important reforms that were initiated by the authorities
to address their underlying causes. On that basis, we will outline
some of our recommendations for these reforms and define a number
of priorities for the ongoing monitoring procedure of Armenia, with
a view to possibly presenting a full monitoring report to the Assembly
in 2013.
2 Persons
remaining in prison after the first general amnesty in 2009
7. Resolution
1677 (2009) noted that, under the general amnesty declared
on 19 June 2009, most, but not all, persons deprived of their liberty
in relation to the events of 1 and 2 March 2008 had been released,
and it asked the Monitoring Committee to follow closely the developments
with regard to the remaining cases.
Note In addition, the resolution noted
that this amnesty was applicable to persons in hiding if they gave
themselves up voluntarily to the police before 31 July 2009. Given
the possible application of the amnesty for these persons, the Assembly
urged the Armenian authorities to allow those persons concerned
to remain free during their trials.
8. Following the adoption of the 2009 amnesty, two persons who
had been on the run, Mr Nikol Pashinyan and Mr Khachatur Sukiasyan,
Note turned themselves in. Both
men were initially detained pending their trial. Mr Sukiasyan was
subsequently released pending trial under a promise not to leave
the country, but Mr Pashinyan remained in detention on remand for
the whole duration of the trial proceedings, despite calls from
the Assembly to the contrary.
9. On 8 February 2011, the Special Investigation Service of Armenia
formally dropped the criminal charges against Mr Sukiasyan in relation
to the March 2008 events for lack of evidence. Mr Sukiasyan, who
protested his innocence against the charges levied against him,
had requested that not only should the charges be dropped but also
that he be formally acquitted, in order to clear his name.
10. On 19 January 2010, Mr Pashinyan, who was considered by the
authorities as one of instigators of the March 2008 events, was
sentenced to seven years in prison. His sentencing was controversial,
as the courts sentenced him to seven years while the prosecution
had asked for “only” six years. Customarily, judges in Armenia pass
lower sentences that those asked for by the prosecution. Therefore,
in the view of many interlocutors, the main reason for this extraordinary
sentencing was the clear intention of the authorities not to release
Mr Pashinyan under the terms of the 2009 general amnesty. The sentencing
was also problematic for the Assembly on the grounds that Mr Pashinyan
was sentenced exclusively under article 225 (mass disorder) of the
Criminal Code.
Note In
previous resolutions on this issue, the Assembly had expressed its
view that convictions under Article 225 in relation to the events
of 1 and 2 March 2008 were unacceptable. Moreover, the conviction
of Mr Pashinyan was based primarily on police testimony without
corroborating evidence,
Note a practice
deemed problematic by the Assembly as well according to the case
law of the European Court of Human Rights.
11. Following the 2009 amnesty, a number of additional persons
remaining in prison in relation to the March 2008 events were released
when their request for a presidential pardon was granted. However,
according to Armenian legislation, a pardon can only be granted
when guilt is admitted by the person in question, which, for understandable
reasons, was not an option for a number of detainees.
12. Under the terms of the 2009 amnesty, persons who were not
eligible for release from prison had their remaining sentence halved.
As a result, most remaining prisoners were eligible for parole under
Armenian legislation, which stipulated that in most cases parole
can be considered when half of the sentence has been served. This
opened up new possibilities for the release of persons deprived
of their liberty in relation to the March 2008 events, in line with
our Assembly’s suggestions. During his visit to Armenia in the framework
of the Forum for the Future of Democracy, in October 2010, Mr John
Prescott urged the authorities to release the remaining prisoners
on parole as soon as they were eligible and not to place any artificial
barriers in the way of their release.
13. In the last trimester of 2010, a significant number of persons
imprisoned in relation to the March 2008 events were released on
parole. As a result, at the time of our visit in March 2011, only
seven persons remained in prison whose conviction was considered
politically motivated by the Armenian National Congress. The most prominent
among these were Mr Nikol Pashinyan, whose case we have discussed
above, and Mr Sasun Mikaelyan, one of the other MPs whose immunity
was lifted. Mr Mikaelyan was not eligible for release under the
2009 amnesty because he was also convicted for illegal arms possession
after a large arms cache was found in his possession. Mr Mikayelyan’s
health situation had reportedly been deteriorating rapidly in prison, prompting
the Council of Europe Commissioner for Human Rights to call for
his release on humanitarian grounds during his visit in January
2011.
14. During our March 2011 visit, we stressed that the continued
imprisonment of opposition supporters in relation to the March 2008
events, together with the lack of a proper investigation into the
ten casualties that occurred during those events, continued to poison
the political atmosphere in the country and had become the main
obstacle to the normalisation of the political environment. This,
in turn, risked having a negative impact on the upcoming parliamentary
elections in May 2012. We therefore strongly urged the authorities
to use all legal means available to them to release the remaining
opposition supporters and not to place any obstacles in the way
of their early release when that opportunity arose.
15. On 20 May 2011, President Sargsyan requested the National
Assembly of Armenia to adopt a general amnesty, which it did on
26 May 2011. Under the terms of the amnesty more than 500 people
were released – including all of the persons remaining in prison
in relation to the 2008 events – and more than 2 000 persons have
had their remaining sentences reduced. The release of these persons
removed the last obstacle for the normalisation of the political
climate and opens the door for the beginning of a constructive dialogue
between the authorities and the opposition.
Note This
should be strongly welcomed by the Assembly.
3 Investigation into
the 2008 events and the ten casualties
16. In
Resolution
1677 (2009), the Assembly underscored that an impartial
and credible investigation into the events of 1 and 2 March 2008,
and the circumstances that led to them, continued to be necessary,
despite the breakdown of the independent fact-finding group that
was set up on the proposal of the Commissioner for Human Rights.
Given that the Ad Hoc Parliamentary Inquiry Committee had continued
its work in parallel to the fact-finding group and that it had reportedly
been more independent in its work than originally expected, the Assembly
considered that this body would be well placed to finalise the inquiry.
In the view of the Assembly, a report of this committee would ultimately
determine whether the criteria of impartiality and credibility had
been met and whether further investigations would be necessary.
17. The Ad Hoc Parliamentary Inquiry Committee presented its report
to the National Assembly on 17 September 2009. We analysed this
report in our information note (document AS/Mon (2009) 38 rev).
18. In its report, the Ad Hoc Parliamentary Inquiry Committee
concluded that the socio-economic polarisation, the lack of public
trust in the authorities – especially in the judiciary – the lack
of checks and balances between the different branches of government,
the inadequate protection of civic and human rights, the lack of
pluralism in the media and the emergence of a small political and
economic elite governing the country had been the main underlying
factors leading to the outbreak of discontent after the presidential elections
in February 2008. However, surprisingly, the Inquiry Committee then
went on to conclude that it had been the cynical exploitation of
these factors by the forces supporting Levon Ter-Petrossian, as
“propaganda against the authorities”, that had created an atmosphere
of intolerance and public discontent, which, in turn, was manipulated
by the same opposition to instigate mass disorder.
19. This rather one-sided view of the underlying causes for the
political crisis, the surprising lack of criticism of the authorities
and the placing of the blame for the polarised political climate
solely on the opposition forces, especially on those supporting
Mr Levon Ter-Petrossian
Note, is regrettable, as it undermines
the credibility of the report by the Inquiry Committee. This is
especially regrettable considering that the recommendations contained in
the report make it clear that, in reality, the committee made a
far more comprehensive and balanced analysis of the March 2008 events
and the developments that led to them than would appear from its
formal conclusions.
20. The report of the Inquiry Committee paints a picture of the
actual events on 1 March as a badly planned and mismanaged police
operation – ostensibly to act upon reports that protesters were
amassing arms on Liberty Square
Note –
that degenerated into practically uncontrollable riots. In this
respect, the report recognises that the overall nature of these
protests was spontaneous and not premeditated. This conclusion confirms
the position of the Assembly, expressed in all its resolutions on
the matter, that the March 2008 events cannot be considered as a
premeditated attempt at a
coup d’état.Note
21. In its report, while considering the police action on the
morning of 1 March 2008 “on the whole lawful and appropriate”,
Note the Inquiry Committee strongly criticised
the manner in which the police handled the situation during those
events and, particularly, for not implementing measures to establish
a dialogue with the protesters or deploying other non-violent mechanisms
of crowd control. In addition, it considered that a significant
number of individual police actions, including the confiscation
and subsequent destruction of video materials of journalists and
instances of police brutality, violated legal procedures and were
overall unacceptable.
22. Similarly, the Inquiry Committee regretted and criticised
the fact that opposition leaders did not do more to avert the civil
disorder and outbreak of violence. In this respect, it notes that,
due to contradictory decisions and the inaction of opposition leaders,
measures were not taken that could have prevented the further deterioration
of the situation in the afternoon of 1 March 2008.
23. A key issue for the Assembly has been, and is, the investigation
into the ten deaths that occurred during the events of 1 and 2 March
2008. In
Resolution 1677
(2009), the Assembly expressed its concern that the investigations
by the Prosecutor General had not led to any results and considered
it to be essential that this investigation be satisfactorily concluded
without further delay.
Note During our contacts with the authorities
and visits to the country, we have constantly highlighted this issue
and called for a satisfactory answer to the circumstances of, and
responsibility for, these ten deaths.
24. We welcomed the fact that, in its report, the Inquiry Committee
paid extensive attention to the subject of the ten deaths. Also,
the independent fact-finding group investigated this issue in extenso. Regrettably, its findings
underscore the politicisation of the work of the group since it
seems to focus on procedural mistakes and errors by the responsible
investigation services rather than on establishing clarity with
regard to the circumstances of these ten deaths. That said, these
reports raise legitimate questions with regard to the official version
of the events and contain important findings that deserve to be
acknowledged as such. The responses of the investigation services
to the reports of the independent fact-finding group illustrate
an unacceptable level of contempt by these services for the members
and the work of the fact-finding group. This raises questions about
their willingness to get to the bottom of these issues.
25. Of the ten victims – two policemen and eight civilians – one
person (a policeman) died as a result of the setting off of an explosive
device, five from bullet injuries, three from injuries caused by
being directly hit by “Cheremukha-7” gas grenades and one from injuries
to the head caused by a non-specified blunt object.
26. With regard to the five persons who died from bullet wounds,
in two cases the bullets could not be recovered, which makes it
impossible to establish the type of weapon from which they were
fired. Of the other three shooting deaths, two were the result of
a bullet fired by a Makarov PM pistol and one from a bullet fired by
a Kalashnikov 47 sub-machine gun. Given that it was established
that the police were firing tracer bullets with Kalashnikov sub-machine
guns over the heads of the protesters (!), as well as the fact that
the Makarov PM is the standard-issue sidearm of the Armenian police,
it could be expected that there would be a very high statistical
chance of tracing some of these bullets to the weapons that fired
them. However, to our surprise, the police have not been able to
trace any of the bullets. This raises a number of serious questions
about the police investigation and is very regrettable, for it could
easily be construed as a possible cover-up by the police.
27. The death of three persons by tear gas grenades that were
fired by the police has also been a matter of controversy. It was
concluded by the investigation services that these three deaths
were the result of grenades being fired directly at, or in the vicinity
of, the protesters at point blank range, which is expressly forbidden
in the regulations governing their use. Regrettably, international
experts confirmed to the Inquiry Committee that it is impossible
to match the grenade to the weapon that fired it because the bore
does not leave a suitable ballistic signature on the plastic casing
of the grenade. It seems therefore, in our view, doubtful that the policemen
that fired these fatal grenades will ever be identified on the basis
of the shrapnel found in the bodies.
28. In our contacts with the Chair of the Inquiry Committee, we
were informed about the lack of co-operation of the law enforcement
and security services with the committee, which had created serious
difficulties for the committee to receive the information it had
requested, Similar complaints were also made to the Commissioner for
Human Rights when he visited Armenia.
NoteThis
lack of co-operation from the law enforcement agencies is totally
unacceptable and, in our view, an additional argument for establishing
civilian control over the police forces, as recommended by the Assembly
in
Resolution 1609 (2008) and
Resolution 1677 (2009).
29. The one-sided and biased view of the responsibility for the
events of 1 and 2 March 2008, the clear impression that the Inquiry
Committee wanted, at all costs, to avoid overtly discrediting the
official version of the events or harshly criticising the authorities
on their handling of them, undermined the overall credibility of the
inquiry and the impact it could have had on resolving the tense
political environment. As a result, questions and doubts linger
in the society as to the true causes and sequence of the events.
30. This is all the more regrettable as the recommendations contained
in the report clearly indicate that the Inquiry Committee made a
far more comprehensive and in-depth analysis of the events and their circumstances
than is reflected in its official conclusions. In our view, implementation
of the reforms and policies recommended in the report of the Inquiry
Committee is a good basis for addressing the underlying causes of
the events of March 2008, and we have therefore fully supported
the subsequent reform process.
31. Until now, the Office of the Prosecutor General and Special
Investigation Service of the police have not been able to identify
any person or persons responsible for the ten casualties. The authorities
therefore concluded that the opening of an inquiry was not possible
as long as clear evidence that would identify the individuals directly
responsible for the ten casualties was missing.
32. In our view, this was a restricted view of what such an inquiry
should entail. We emphasised to the authorities that the aim of
the inquiry called for by the Assembly was not only to identify,
if possible, the individuals responsible for the ten casualties
but also to establish how these casualties could occur during a public
demonstration, to investigate possible command responsibility and
to recommend that measures be taken to avoid a similar situation
during future demonstrations. Furthermore, in the event that no
individual responsibility can be established, such an inquiry should
explain why this is the case. We also highlighted that other countries
have held similar inquiries when police action resulted in fatalities,
as for instance with the shooting of a Brazilian citizen by the
police in the London Underground, or in the context of the troubles
in Northern Ireland. Therefore, in our view, the fact that no individual
responsibility can be established by the Prosecutor General is not
a valid argument for failing to conduct a credible inquiry as called
for by the Assembly.
33. We welcome the apparent openness of the authorities to our
arguments in this respect. They informed us that a number of different
– if partial – investigations into the causes of the ten deaths
have been conducted by various government bodies in addition to
– and following – the investigations conducted by the Prosecutor General
and the Ad Hoc Parliamentary Inquiry Committee of the National Assembly.
The authorities acknowledged that none of the findings of these
investigations have been combined and assessed by an independent
body, which would have increased its credibility in the eyes of
the Armenian public.
34. President Sargsyan therefore indicated his willingness to
reopen the investigation and to present a public report on its outcome.
On 20 April 2011, the President subsequently ordered the law enforcement agencies
to give renewed impetus to the stalled investigations into the March
2008 events and especially into the responsibility for the ten casualties
that occurred. This renewed effort has substantially improved the political
climate in Armenia and will hopefully provide closure for this painful
episode in Armenia’s recent history. In order to ensure the credibility
of the investigations, we urge the authorities to make the full
report of them available for public scrutiny, even if they fail
to establish individual responsibility.
35. During our visit in July 2011, we met the Head of the Special
Investigation Service, which has been tasked by the President of
Armenia with re-evaluating all evidence and findings in the investigation
into the ten deaths. While he was hopeful and confident that the
investigation would lead to results, he confided that, until now,
no new evidence has been unearthed that could help identify the
persons responsible. In his view, the politicisation of the whole
affair was influencing witness statements and their willingness
to testify. We stressed the need to investigate command responsibility
fully and to provide absolute transparency with regard to the progress,
or lack thereof, of the investigation. In this respect, the weekly
press conferences organised by the Special Investigation Service
are a welcome step.
36. During our last visit to Armenia, President Sargsyan clearly
demonstrated his personal commitment to establishing responsibility
for the ten deaths that occurred.
37. The fact that, in the end, the police are responsible for
investigating their own decisions and actions with regard to the
ten deaths is a weak point in the investigation and leads to questions
about their impartiality and credibility in the eyes of the Armenian
public. In our view, this underscores the urgent need for the establishment
of proper civil oversight and control over the police forces in
Armenia, as called for by the Assembly in
Resolution 1677 (2009).
Note
4 Reform package
38. As previously mentioned, the recommendations of the
Ad Hoc Parliamentary Inquiry Committee form a sound basis for addressing
the main underlying causes that ultimately led to the events of
March 2008. The authorities have announced a comprehensive reform
package to respond to the recommendations contained in this report.
The main pillars of that reform package are electoral reform, reform
of the judiciary and reform of the police. In addition, on various
occasions, we have stressed the need for a reform of the media environment with
a view to increasing its pluralism. The domestic monitoring of the
implementation of these reforms has been entrusted by the authorities
to the Standing Committee on State and Legal Affairs of the National Assembly,
which is chaired by Mr Davit Harutyunyan, who is also the chair
of the national delegation of Armenia to our Assembly. As a result,
there has been a continuous exchange of information and interaction
between the authorities, the co-rapporteurs and the Monitoring Committee.
We would like to underscore that such a privileged and constructive
dialogue should be seen as an example for co-operation in the framework
of the monitoring procedure of the Assembly.
39. We will outline these reforms in more detail in the sections
below. However, when assessing the overall reform package, we would
like to stress two crucial issues.
40. First, while we welcome the significant number of reform concepts
and strategies, these should now be translated into draft legislation
and concrete policies, in order to implement the reforms needed
for the country.
41. Second, most of the reform proposals focus on amending existing,
or introducing new legislation. However, legislative changes alone
cannot achieve the desired reforms. Many interlocutors, from all
sides, acknowledge that existing legislation is often adequate but
that it is not implemented coherently and/or in good faith. The
reforms proposed should therefore not focus on legislative change
per se but equally on changing existing practice and mentalities.
We realise that such changes will not be easy to achieve and will
meet resistance from vested interests. However, we are convinced
that, with commensurate political will, it is possible to achieve
these necessary changes of practice and mentalities.
4.1 Electoral reform
42. Electoral reform is a key element of the reform package
of the authorities. The reforms in this area are especially important
in the light of the parliamentary elections scheduled for May 2012.
Free and fair elections that result in a parliament that reflects
the different views and forces existing in Armenian society are
essential for the normalisation of the political situation and democratic
consolidation in the country. Equally important, especially in the
light of the allegations made in relation to the 2008 presidential
election, is that these reforms are implemented, and the election
process itself is conducted, in a manner that will have the full
trust of all the electoral stakeholders and the Armenian public.
43. Regrettably, questioning the fairness of the election process,
and alleging – or at least insinuating – electoral fraud, has been
part of the election strategies of several parties in the past.
This has not contributed to public trust in the election processes
and has been harmful. We therefore call on all parties not to undermine public
trust in the election process by unnecessarily challenging the election
process or claiming electoral fraud before the elections have even
taken place. For similar reasons, we hope that all parties will
resist the temptation to explain disappointing election results
to their sympathisers by unjustifiably casting doubt on the fairness
of the election process itself.
44. In the aftermath of the March 2008 events, the National Assembly
established a special working group on electoral reform,
Note in
which representatives of the civil society and extra-parliamentary
opposition, as well as academic experts, were invited to participate.
A number of opposition parties, including the Heritage Party
Note and the Armenian
National Congress of Mr Levon Ter-Petrossian, were also invited.
This working group was tasked with elaborating the proposals for
electoral reform. While initially very active, it has been largely
dormant since the beginning of 2009. As a result, the first proposals
for the new electoral code were drafted in the Standing Committee
on State and Legal Affairs and then tabled for discussion in the
electoral working group. This procedure led to a number of opposition
parties claiming that the authorities were trying to impose their views
of the electoral system, but this seems to be belied by the elaborate
and largely transparent consultation process that was put in place
by the authorities.
45. The initial draft was presented by the authorities at a special
conference to which , inter alia all
political forces, as well as the European Commission for Democracy
through Law (Venice Commission) and the Office for Democratic Institutions
and Human Rights of the Organization for Security and Co-operation
in Europe (OSCE/ODIHR) were invited. Regrettably, the ANC declined
to participate in this conference, which otherwise included all
major political forces in the country. The authorities subsequently
prepared a draft text for a new electoral code and sent it for discussion
to the electoral working group that was established after the 2008 events.
However, the discussions in the working group were boycotted by
the opposition, including those who had participated in the conference,
who felt that the draft prepared by the authorities did not reflect
any of their views and suggestions as expressed during the international
conference. As a result, the opposition feared that it would be
unlikely that its views would be incorporated in the new electoral
code and that its participation therefore would only serve to give
legitimacy to a text that, in practice, it would have no concrete
possibility to influence. In response, instead of participating
in the working group, the opposition prepared its own alternative draft
for a new electoral code.
46. At our request, the Monitoring Committee asked for an opinion
of the Venice Commission on the alternative electoral code prepared
by the opposition, in order to ensure that both versions would benefit
from its expertise and assessment. Wanting to avoid a protracted
standoff on this issue, the chair of the electoral working group
of the National Assembly decided to table both drafts for discussion
in the parliament, in order to ensure that all different views and
suggestions would be heard and discussed. Although a number of its recommendations
were either taken up, or otherwise addressed, the parliamentary
opposition expressed its regret that, in its view, too few of its
proposals had been accepted by the ruling majority, even when those proposals
had been welcomed by the Venice Commission. Despite that, it agreed
that, in general, the new electoral code was an improvement over
previous versions and that it could form an adequate basis for democratic
elections.
47. On 10 February 2011, the President of the National Assembly
of Armenia requested the opinion of the Venice Commission on the
proposed amendments to the electoral code. A joint opinion
Note of
the Venice Commission and OSCE/ODIHR on these amendments was adopted
on 20 June 2011. The Armenian authorities informed us that the recommendations
and concerns contained in the opinion had already been transmitted
to the authorities before they were formally adopted by the Venice
Commission. This, reportedly, had allowed the authorities to take
the Venice Commission’s recommendations into account when adopting
the new electoral code on 26 May 2011. Nonetheless, the authorities
have asked for an opinion of the Venice Commission on the electoral
code adopted. At the moment of writing, this opinion was not yet
available, and we are therefore not in a position to assess to what
extent the Venice Commission recommendations and concerns have been
dealt with in the new electoral code. We would, however, urge the
authorities to address any remaining recommendations and concerns
that may be contained in the Venice Commission’s future opinion
on the new electoral code.
48. In its interim opinion, the Venice Commission and the OSCE/ODIHR
welcomed the improvements made in the new electoral code, which
address several previous recommendations from the Venice Commission
and international election observers, including the Assembly. However,
the Venice Commission considered that a number of areas would benefit
from further improvement, including ,
inter alia, formation of election commissions, candidacy
rights, campaign regulations, determination of election results
and complaints and appeal procedures.
49. The new electoral code introduces a mixed professional-partisan
model of election administration, whereby the Central Election Commission
and the Constituency Election Commissions are composed of civil servants
nominated by independent bodies,
Note while
the Precinct Election Commissions are appointed via a partisan model
that allows each parliamentary faction in the National Assembly
to appoint a member in each commission.
50. The professional model for the Central Election Commission
and Constituency Election Commissions was introduced with the aims
of increasing the trust of the stakeholders and general public in
the election process and avoiding the politicisation of the higher
levels of the election administration, which has been problematic
in the past. For the same reason, membership of the higher-level
election commissions was restricted to civil servants, as their
duties are covered by the Law on Civil Service, which foresees severe penalties
for fraud and misuse of power by civil servants in the exercise
of official duties. It is hoped that this will counter any temptation
for electoral misconduct by members of the election commissions
in the exercise of their duties.
51. As noted by the Venice Commission, the fundamental basis for
a professional election administration is the trust of all stakeholders
in the neutrality of the state institutions. This trust has often
been questioned in Armenia, and we therefore call on the authorities
to ensure that no pressure is put on – and that even no impression
to this effect is given – the civil servants that are members of
the election commissions.
52. In our view, as well as in that of most of our interlocutors,
the newly adopted electoral code can provide an adequate basis for
the conduct of democratic elections if implemented in good faith.
All political forces now have the responsibility to give life to
this code and to ensure that it is implemented both in letter and
in spirit.
53. As we have mentioned in previous reports, the events of March
2008 were to a large extent the result of a complete breakdown of
public trust in the political system in general and in the fairness
of the conduct of elections in particular. This underscores the
importance of the upcoming elections: if conducted in a democratic manner
that has the trust of the Armenian public, they will be the culmination
of the normalisation of the political environment after the March
events. On the other hand, a failure of the political system to
conduct democratic elections would have serious consequences.
54. Of additional importance is the fact that, as a result of
the political developments in the aftermath of the March 2008 events,
a considerable number of political views and newly emergent political
forces are not represented in the current composition of the National
Assembly. A number of mechanisms have been set up and utilised to
involve this extra-parliamentary opposition in critical questions
for the political development of the country, but the rightful place
for such dialogue and discussion – in the long term – should be
the parliament. It is widely expected that the current extra-parliamentary
opposition will enter parliament after the elections, which, in
the light of the above, will be beneficial for the democratic consolidation
of the country and will strengthen the social-democratic base necessary
for the reforms that are needed.
55. We strongly welcome the fact that the electoral reform was
finalised well before the elections that will take place next year.
This not only ensures the stability of electoral law when the elections
are called but also allows for a less politicised reform process
than would have been the case if the reforms had taken place close to
the elections themselves.
Note This strategic, forward-looking
approach to electoral reform should be an example for other Council
of Europe member states when considering electoral reform.
56. The Armenian National Congress has called for early parliamentary
and presidential elections and has made this a key issue in the
recently established dialogue with the ruling coalition.
Note We have already mentioned the importance
of the trust of the public and electoral stakeholders in the election
process. This will require proper time for, and preparation by,
the electoral administration and all parties that will compete in
these elections. We have some concerns that early elections would
hamper the quality of the conduct of the elections and thus would
not contribute to generating the requisite trust in the election
process. Moreover, it seems to us that early elections would only
bring forward the election date by a few months at the most.
57. International, in addition to domestic, election observation
will be important in shoring up the required trust in the electoral
process. Therefore, we call on the international institutions to
ensure that the forthcoming elections will be observed by a large
number of international election observers in order to ensure a
maximum coverage of polling stations. To that end, we also recommend
that our Assembly participates with a large delegation in the framework
of the International Election Observation Mission (IEOM).
4.2 Reform of the judiciary
58. The functioning of the judiciary continues to be
an issue of great concern, especially with regard to its lack of
independence. These concerns pre-date the March 2008 events. In
the view of the Assembly, this lack of independence and the resulting
absence of trust of the Armenian public in the judiciary as an impartial
arbiter were among the underlying causes for public resentment that
were at the core of the March 2008 events. In
Resolution 1609 (2008), the Assembly
therefore urged the authorities to step up their efforts to establish
a truly independent judiciary and enhance the public’s trust in
the courts.
Note
59. The problematic functioning of the judiciary was highlighted
in the report of the OSCE/ODIHR on the monitoring of the trials
of the persons arrested in relation to the March 2008 events. This
report reveals serious problems in the adjudication of these trials,
raising questions about the right to a fair trial in Armenia as
required by Article 6 of the European Convention on Human Rights
(ETS No. 5).
60. In addition, the justice system in Armenia is still very much
prosecution driven, and the judiciary is openly biased in favour
of the prosecution and police, which raises questions with regard
to the principle of equality of arms between prosecution and defence,
as well as the presumption of innocence. This bias in favour of
the authorities is also important in relation to combating ill-treatment
and police brutality.
Note As mentioned
in a recently published report
Note by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
judges in Armenia should be reminded that they must take appropriate
actions in response to indications and allegations of police ill-treatment
and abuse. Failing to do so could lead – or contribute – to a climate
of impunity for abuse by the police, which is a matter for concern.
61. The problems with regard to the justice system and independence
of the judiciary are recognised by the authorities, which have made
the reform of the judiciary one of the priorities of their reform
package. However, despite this priority, the reforms have, to date,
not achieved the desired results. Most interlocutors consider the lack
of independence of, and corruption in, the judiciary as endemic
and one of the main problems hampering the development of Armenian
society.
62. These concerns were highlighted by the recently appointed
Minister of Justice, who has made the fight against corruption in
the judiciary and the strengthening of its independence the cornerstones
of his policy. During his recent visit to Strasbourg, the Minister
informed us that while on paper the legal guarantees for the independence
of the judiciary exist, this has not led to an independent judiciary
in practice, and additional reforms are direly needed.
63. We welcome the priority given these issues, as well as the
clear political will to address them, by the new Minister of Justice.
At the same time, we wish to stress that reforming the judiciary
is a long-term process and that reforms should not focus on legislative
changes alone but should be combined with a comprehensive policy
for their implementation aimed at changing mentalities and practice.
4.3 Police reform
64. The events of March 2008 underscored the need for
a thorough reform of the police. As mentioned above, serious questions
were raised in the report of Ad Hoc Parliamentary Inquiry Committee
about the handling by the police of the events on 1 and 2 March
2008. Subsequently, a number of personnel changes at the top of
the national police force were made. This seems to indicate the
dissatisfaction of the authorities with the overall police performance
during those days. However, this cannot be seen as a substitute
for a comprehensive inquiry into command responsibility for the
ten casualties, which we have called for on numerous occasions.
A series of reforms was launched that specifically aims at improving
the manner in which the police handle crowd control during mass
gatherings. In addition, the guidelines for the use of “special means”
– an Armenian term for special weapons and other forms of the use
of force by the police – during demonstrations were considerably
changed to avoid misuse or casualties.
65. However, concerns already had been raised about the police
before the March 2008 events, including on issues that were mentioned
in the report of the Inquiry Committee. Excessive use of force by
police officers as well as cases of corruption and falsification
of evidence by the police in order to ensure a conviction are regrettably
endemic in Armenia. This was also highlighted in the report of the
CPT, which called on the Armenian authorities to “make it clear
to all law enforcement staff that ill-treatment of persons in their
custody is illegal and will be dealt with severely in the form of
criminal prosecution”.
Note
66. We would like to stress that these problems are recognised
by the Armenian authorities, who have announced a comprehensive
reform of the police. In this respect, we welcome the many reforms
initiated under the auspices of the new Deputy Head of Police. However,
from our meetings with the leadership of the police, we got the
clear impression that, unfortunately, he will face considerable
internal resistance to his proposed reforms.
67. A compounding hindrance to these reforms is the institutional
set-up of the police. Armenia has no ministry of the interior, and
the police are basically self-governing under the authority of the
president and accountable only to him. This means that public oversight
of the police, and accountability to parliament, is limited. In
addition, as a result of this institutional arrangement, the credibility
of investigations by the police force into its own behaviour is
impaired, as is clear from the investigations into the March 2008
events to which the police were a party.
68. In line with the request of the Assembly that an effective
public control mechanism over the police be guaranteed both in law
and in practice,
Note we strongly recommend that civilian
control and normal accountability to the parliament be established,
possibly by re-establishing a ministry of the interior.
69. A key element of the police reforms announced by the authorities
was the establishment of an independent police complaints mechanism.
The aim of the proposed mechanism is to enable an independent entity
to investigate allegations of police misconduct. A first proposal
for such a complaints mechanism was prepared by the secretariat
of the President of Armenia and presented to the Council of Europe
for comments.
70. In their assessment,
Note the Council of Europe
experts welcomed the proposed mechanism as an important step forward
to fight abuses and misconduct by the police. However, they felt
that additional measures should be taken to ensure the genuine independence,
effectiveness and credibility of such a mechanism.
71. In the authorities’ proposal, all members of the complaints
investigation committee would be nominated and appointed by the
President, which, in the view of the experts, would undermine their
independence. In addition, the proposed criteria for membership
of this committee were found to be overly restrictive, which could undermine
the quality and effectiveness of the investigations. The experts
therefore recommended widening the profile for members of the committee
and suggested that these members should be selected by an elected body,
in line with European standards. Moreover, the experts recommended
that the excessive limitations on the scope and type of complaints
the mechanism could investigate needed to be removed and that it
should be given the mandate and means to conduct its own investigations
and verification of facts.
72. However, to our regret, the authorities have informed us that
they do not consider it appropriate to implement such a complaints
mechanism at the present time. In their view, which is supported
by other interlocutors such as the Human Rights Defender, the establishment
of such a mechanism in the current political and institutional context
would only add another layer of corruption for the citizens seeking
justice from police abuse. The authorities stress that they are
still committed to the establishment of a proper complaints mechanism
but that its implementation should be delayed until the necessary
preconditions have been met.
73. While accepting the merits of the authorities’ argument, we
would like to emphasise that this delay should not lead to the proposal
for such a complaints mechanism being shelved indefinitely. We therefore
call on the authorities to establish, and inform us about, a clear
timetable for the implementation of the police complaints mechanism,
as well as an enumeration of the conditions – and the manner in
which they will be met – that need to be in place for the mechanism
to be established.
4.4 Media pluralism
74. An essential condition for the democratic development
of Armenia is the creation of a genuinely pluralist media environment,
which is so far still lacking in the country. The Assembly has therefore
consistently called on the authorities to foster a pluralist media
environment and to allow an open, fair and transparent broadcasting
licence tender procedure in line with the guidelines adopted by
the Committee of Ministers and the case law of the European Court
of Human Rights.
75. In line with the decision of the Court in the case of the
denial of a broadcasting licence to the television channel A1+,
and after a delay that the authorities argued was needed due to
the technical requirements for digital broadcasting in Armenia,
a broadcasting licences tender was organised from July to December
2010. While in total 25 licences were up for competitive bidding,
the main question that dominated this tender was whether A1+ would
regain its lost broadcasting licence in the competition. For many
observers the question of whether or not A1+ would be allowed back
on air would be indicative of the willingness of the authorities
to open up the media landscape in Armenia and establish a genuinely
pluralist media environment.
76. On 16 December 2010, the National Commission for Television
and Radio (NCTR) adopted a controversial decision
Note in
which it announced that A1+ was not being granted a broadcasting
licence on the grounds that the information sustaining the bid of
Meltex LLC, the holding company of A1+, was “not acceptable due
to the fact that a significant number of documents verifying availability
of necessary financial resources are forged and unfounded”.
Note This
was denied by the owners of Meltex LLC, while other observers noted
that technical errors and omissions in other applications did not
prevent them from being awarded a broadcasting licence in this tender.
While not wishing to comment on the merits of the decision of the
NCTR,
Note we regret that the authorities
– in this case the NCTR – rejected the bid from A1+, while being
fully aware of its significance, on what would seem to be purely
technical/administrative grounds, without allowing Meltex to correct
or clarify the background information it had given to support its
bid.
77. At the Committee of Ministers’ 1115th meeting, from 7 to 8
June 2011, the Ministers' deputies adopted Resolution CM/ResDH(2011)39
on the execution of the judgment of the European Court of Human
Rights in the case of Meltex and Mesrop
Movsesyan v. Armenia, in which it decided to close its
examination of the case on the grounds that Meltex had been able
to participate in a transparent tender in which it received a reasoned decision
that it could appeal in the courts if it so wished. This decision
was met with profound criticism by the Armenian opposition and most
civil society and media representatives, who felt that it was taken
too hastily, at a time when the NCTR decision is still sub judice, and that it did not
take all factors sufficiently into account.
78. It is important to differentiate between the order of the
Court in this case and the position of the Assembly (as expressed
in several resolutions) on media pluralism in Armenia. While the
decision of the Court required that an open and transparent broadcasting
licence tender procedure be organised by the Armenian authorities, the
Assembly has always asked that, in addition, such a tender process
should result in a more pluralist and diverse media environment.
79. The Television and Broadcasting Act of Armenia was substantially
amended in 2010, in close consultation with the Council of Europe.
While we welcome that the amended law is overall an improvement over
previous legislation, a number of issues that are decisive for a
genuinely pluralist and open media environment have not, in our
view, been sufficiently addressed. It is clear that the outcome
of the recent tender cannot be considered to be in line with the
Assembly’s requests in that respect.
80. One of the primary problems with regard to the regulatory
and licensing framework is the composition of the National Commission
on Television and Radio. While the recently amended legislation
strives to ensure the independence of the individual members and
provides for a transparent and open nomination process, it does
not require that the Commission in its entirety be truly representative
or that it reflect the different views that exist in the Armenian
society. It is clear that the current arrangements for the composition
of the Commission – 50% nominated by the President of the Republic
and 50% by the parliament (in which the ruling coalition has a comfortable
majority) – do not necessarily lead to a heterogeneous and impartial
composition from a political point of view. We would like to recall
that the Assembly has called for the NCTR to be “truly representative
of the Armenian society”.
Note
81. According to European standards, the Armenian authorities
are obliged to safeguard and promote media pluralism in the introduction
of digital television and radio and in the issuing of broadcasting
licences.
Note However,
in the view of several experts, with whom we concur, the current
legislation does not sufficiently require or guarantee that pluralism
should guide the decisions of the NCTR when granting broadcasting licences.
Note While the law requires that the criterion
“capacity to promote pluralism” must be taken into account in the
licensing procedure – thus placing the onus for the responsibility
for pluralism on the individual broadcasters – nowhere does the
law provide that the decisions of the NCTR with respect to the granting
of individual licences should ensure a pluralist media environment.
This is a major shortcoming of the current legislation that needs
to be addressed by making pluralism a firmly established legal guiding
principle for licensing decisions by the NCRT.
82. From a number of expert reviews of the outcome of the broadcasting
licence tender procedure, we have a clear impression that the discretionary
powers conferred by the law on the NCTR are too broad and thus leave
room for arbitrariness in the application of the different criteria
for the granting of broadcasting licences, in contravention of international
standards.
83. The introduction of digital broadcasting makes broadcasting
frequencies far less of a scarce commodity, theoretically allowing
for a considerable increase in broadcasting licences. However, in
Armenian legislation, digital broadcasting licences, like all other
broadcasting licences, are linked to the analogue broadcasting licences.
The result is that the introduction of digital broadcasting actually
reduces – temporarily, according to the authorities – the number
of broadcasting licences available.
84. Relatively easy entry into the broadcasting market for a multitude
of interested groups is an important mechanism to ensure pluralism
in the media environment.
Note Given
the opportunities offered by the introduction of digital broadcasting,
we urge the Armenian authorities to de-link digital broadcasting
licences from analogue broadcasting licences and to organise, in
the very near future, a tender for a sufficiently large number of
digital broadcasting licences with the clear objective of increasing
the pluralism and diversity of the media environment.
85. On several occasions, the Assembly has expressed its concern
about the intertwining of political and business interests. In that
respect, it is important that measures are taken to avoid any emergence
of a de facto or de jure media monopoly in Armenia.
5 Dialogue
86. In all its resolutions following the March 2008 events,
the Assembly has consistently called for a dialogue to be initiated
between the authorities and the opposition, including the extra-parliamentary
opposition.
87. Following the release of the remaining prisoners in relation
to the March 2008 events and the renewed investigation into the
ten deaths during these events, as well as the end of the ban on
demonstrations on Liberty Square, the Armenian National Congress
announced its willingness to enter into a dialogue with the authorities on
the normalisation of the political climate and democratic development
of the country. The authorities subsequently proposed the start
of open-ended talks between the ruling coalition and the ANC in
the framework of the Public Council. The first such meeting took
place on 18 July and the second meeting on 26 July 2011.
88. We strongly welcome the beginning of this dialogue between
the ruling coalition and extra-parliamentary opposition, which we
have consistently called for. At the same time, we call for this
dialogue with the extra–parliamentary opposition to go hand in hand
with a constructive dialogue between the ruling coalition and the parliamentary
opposition in the framework of the work of the National Assembly.
89. The Armenian National Congress has stated that its sole objective
for the dialogue is the organisation of early parliamentary and
presidential elections. While we recognise the legitimacy of this
subject as a political strategy, we call upon all sides not to restrict
the dialogue to a limited number of potentially contentious subjects.
In our view, the objective of the dialogue between the opposition
and ruling coalition, be it in the framework of the National Assembly
or in direct talks, should be the further normalisation of the political environment
and the conduct of democratic elections, as well as the creation
of a climate in which genuinely democratic and competitive elections
can take place that have the full confidence of the Armenian electorate.
6 Concluding remarks
90. We warmly welcome the latest general amnesty adopted
by the National Assembly upon the initiative of the President of
Armenia, which resulted in the release of all persons in prison
in relation to the events of March 2008. The release of these persons,
the renewed impetus toward the investigation of the ten deaths during
the March 2008 events and the start of a constructive dialogue between
the opposition and the ruling coalition means that the chapter on
the March 2008 events can finally be considered closed, including
for our Assembly.
91. At the same time, these events and their aftermath have set
clear priorities for the democratic development of the country and
thus for the monitoring procedure. These priorities are: the conduct
of genuinely democratic parliamentary elections that result in a
parliament that truly reflects Armenian society; the creation of
a robust democratic and pluralist political environment that has
the full trust of the Armenian public; the establishment of an open
and pluralist media environment; the reform of the police and the
reform of the judiciary with a view to guaranteeing its independence
both in law and in practice. However, we should stress that, while
these priorities are crucial, they do not diminish the importance
of the other obligations and commitments of Armenia to the Council
of Europe.
92. Lastly, we would like to highlight the close and constructive
co-operation that has been developed between the Armenian authorities
and the Parliamentary Assembly, despite the often difficult and
painful subjects raised. In our view, this is an example of how
co-operation should take place in the framework of the monitoring
procedure. While we have often made suggestions, and from time to
time mediated between the different forces and interests, the solutions
needed to resolve a complex situation have come from the Armenian
political forces and participants themselves, as should be the case.
We are confident that this co-operation will continue, and will
be strengthened, in the important tasks that are ahead of us.
