Ministers’ Deputies / Working Groups

GT-SUIVI .AGO
Monitoring Group

GT-SUIVI.AGO(2004)7[1] (Confidential) 21 September 2004

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Replies by ARMENIA to the questionnaire
sent on 28 April 2004 on the outstanding obligations
and commitments undertaken on accession
to the Council of Europe

Item to be considered by the GT-SUIVI.AGO at its meeting on 28 September 2004

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ARMENIA

I.          Elections and electoral law

•           After the presidential and parliamentary elections, which failed to meet democratic standards, the Armenian authorities accepted the need to improve electoral law and practice. During the recent visit of a delegation of the Group, the authorities firmly undertook to co-operate with European and international organisations in order to implement the recommendations of the international election monitoring mission, particularly regarding revision of the Electoral Code provisions on membership of the electoral commissions, role of observers, transparency of vote counting and prompt publication of results for each polling station;

•           They also provided some information on the sanctions taken and the procedures initiated against the persons responsible for violations of the electoral law during the last elections. A discussion on this issue was to take place in March or April in the National Assembly; The Group awaits more information.

•           During the visit of the delegation, the President stated that the results of the census were published, and the Group has now received them.

The Group underlines the following points:

•           The proposals to amend the electoral law and administration should follow the joint recommendations by the Venice Commission and OSCE/ODIHR; the timetable for co-operation with the Venice Commission and the Council for Democratic Elections annexed to the letter of the Armenian Ambassador dated 4 March 2004 should be observed. According to this timetable and the decisions taken during the visit of delegations of the Venice Commission to Armenia on 22-23 January 2004 and 24-27 February 2004, the modifications to the electoral code should be done in co-operation with the Venice Commission by the end of 2004 and the electoral administration should be brought into conformity with international standards for the next elections (local elections, 2006);

 

•           Explanations and detailed information should be given about the verdicts pronounced by courts in the cases of violations of the electoral law, on action to be taken in cases where proceedings were hitherto suspended and why the number of legal actions initiated is relatively small; an end should be put to the judicial impunity of those responsible for electoral fraud at the latest by the end of 2004.

The joint suggestions of the Venice Commission and OSCE dating March 2004 have already been discussed and the overwhelming majority of them are acceptable for the Armenian side. A new package of joint proposals from the Venice Commission and OSCE/ODIHR was received in May 2004 as an outcome of a three-day seminar held in Yerevan at the end of February 2004. These proposals are being discussed. The process has slowed down, taking into consideration the importance of creating necessary conditions for the dialogue between the authorities and opposition in conformity with the proposals of the PACE Resolutions N 1361 and 1374. As a result, it was impossible to maintain the preliminary agreed date - the end of April 2004, for elaboration of amendments to the Electoral Code. Unfortunately, the opposition still refuses all offers for a dialogue. In order not to fail the process of amending the Electoral Code and to meet the deadline (the end of this year), the deliberations have resumed. The draft amendments were sent to the expertise of Venice Commission in August. The consideration of draft will be included in the agenda of the Parliament’s autumn session, while waiting the experts’ appraisal.

Concerning the reports on violation of the Electoral law the Office of the Prosecutor General informed that 96 reports were received during the first and second rounds of the presidential elections in the Republic of Armenia. As a result of their discussion, 89 decisions were made on rejecting the institution of criminal proceedings - 55 of which because of the lack of evidence of crime, and 33- because of the absence of a corpus delicti. One case was rejected in accordance with the Point 3 of the first part of Article 37 of the Criminal Procedure Code of the Republic of Armenia.

17 criminal proceedings were instituted, 5 of which were referred to the court. Verdicts were rendered on 4 cases. One case is under consideration. The proceedings of 9 cases were suspended in accordance with the Point 1 of the first part of Article 31 of the Criminal Procedure Code. The proceedings of one case were closed in accordance with the Point 2 of the first part of Article 35 of the Criminal Procedure Code and another one, according to the Point 5 of the first part of Article 35.

   

40 reports were received during the elections of the National Assembly of the Republic of Armenia held on May 25, 2003. 11 criminal proceedings were instituted. 2 of them were instituted in accordance with Article 133, one - with Article 133. One case was instituted according to the second part of Article 86 and the second part of Article 96, another case - to the Point 6 of Article 99, Point 4 of Article 15-99 and the first part of Article 232, one case - to the first part of Article 106, two cases - to the first part of Article 109, one case - to Article 150, a case - to the third part of Article 222 and a case - in accordance with the fourth part of Article 222. 3 criminal cases of those instituted were sent to the court. Indictment verdict was rendered on one of them. The other two are under consideration. One case is under the preliminary investigation. 5 cases were closed, one of which - according to the Point 10 of the first part of Article 35 of the Criminal Procedure Code and another one in accordance with the Point 2 of the second part of Article 37. The preliminary investigation of one case was cancelled because of the lack of a corpus delicti and another one was suspended. A case is under the preliminary investigation.

Decisions on rejecting the institution of criminal proceedings were made on 27 reports.12 of them were made because of the lack of evidence of crime, 14 - because of the absence of a corpus delicti, and one – in accordance with the Point 4 of the first part of Article 35 of the Criminal Procedure Code. 

1. The criminal case against Levon Khosteghyan, Samvel Malkhasyan and Hakob Sargsyan was sent to the Court of First Instance of Ararat marz on 08.04.2003. The verdict was rendered on 06.05.2003. It entered into force.

According to the verdict:

·         Levon Khosteghyan was sentenced to one-year imprisonment in accordance with the third part of Article 222 of the Criminal Code and with the application of Article 41 of the Criminal Code a conditional sentence with the same probation period was applied to him.

·         Samvel Malkhsyan was fined for 150,000 drams according to the first part of Article 222 of the Criminal Code of the RoA.

·         Hakob Sargsyan was fined for 150,000 drams according to the first part of Article 222 of the Criminal Code.

2. The criminal cases against Grigor Ohanyan, Misha Khudaverdyan on violation of the Point 2 of the second part of Article 133 of the Criminal Code and that of Samvel Matevosyan, Mher Hovhannissyan, Mher Shahinyan on violation of the first part of Article 133 of the Criminal Code were sent to the Court of First Instance of Ararat marz on 31.07.2003. Verdicts have been rendered.

3. The criminal case against Armen Khachatryan was sent to the Court of First Instance of Ararat marz on 13.06.2003. A verdict has been rendered.

4. The criminal case against Arman Avoyan was sent to the Court of First Instance of Shirak marz on 10.04.2003. A verdict was rendered on 05.05.2003. According to the verdict, A.Avoyan was sentenced to penitentiary works for one-year period without imprisonment and with 20% confiscation of the salary. The verdict has entered into force.

5. The criminal case against Sergey Hovsepyan on violation of the Article 133 of the Criminal Code was sent to the Court of First Instance of Gegharkunik marz on 21.08.2003. A verdict has been rendered.

6. The criminal cases against Aram Geghamyan on violation of the Article 133 Criminal Code and Mayis Badalyan on violation of the Article 17-133 of the Criminal Code were sent to the Court of First Instance of Kotayk marz on 19.04.2004. Verdicts have been rendered.

7.  The criminal case against Sargis Tsaghikyan on violation of Article 109 of the Criminal Code was sent to the Court of First Instance of Aragatsotn marz on 23.03.2003. A verdict was rendered on 27.05.2003, according to which S.Tsaghikyan was sentenced to penitentiary works without imprisonment for 11 months and 27 days and with 15% confiscation of the salary. The verdict has entered into force.

ARMENIA

II.         Functioning of democratic institutions (political parties, relations between the Legislature and Executive, Ombudsman, local democracy)

Law on Political Parties

The text of the draft amendments to the law on political parties was, according to the reply to the last questionnaire, to be sent to the Venice Commission in February. It has however not yet been received.

The Group urges the Armenian authorities to send the draft, which was due already last year, as soon as possible and insists that the comments of the Venice Commission be taken into account.

The draft law on political parties based on the two proposals of the Venice Commission is already prepared. However, it hasn’t been sent for expertise yet, as during its further examination the need for additional amendments appeared which are being elaborated now and will be sent for expertise in autumn, along with the amendments worked out on the basis of the Venice Commission proposals.

The Ombudsperson:

It is recalled that the law on the Human Right’s Defender was adopted but that because of failure to amend the Constitution the Ombudsperson will during the transitional period still be appointed by the President. The Group therefore insisted on the need to appoint a person with high moral authority who could meet with consensus among all political forces. The new Ombudsperson, Ms Larissa Alaverdyan, was appointed on 19 February 2004. A training visit is planned for her, in the coming months, to an Ombudsman institution in a member State.  Ms Alaverdyan had previously worked as an executive director of the Foundation Against Legal Arbitrariness and had served as a member of the presidential Human Rights Commission.

The opposition refused to comment on her appointment in the context of its boycott of dialogue with the authorities but it appears that they consider that she lacks independence.

The Group underlines that the Ombudsperson should act in a way which clearly demonstrates her independence.  The Group will monitor this situation very carefully.

Local Democracy

Ÿ           The supervision over the implementation of the Action plan in line with Congress recommendations was entrusted to the Committee for Local Self-Government at the Office of the President of Armenia. It is particularly encouraging to learn that the Committee has created sectoral sub-committees on specific issues such as territorial reform, development of the legislation etc.

Ÿ           A follow-up seminar to the adoption of the Action plan was held in Yerevan on 2‑3 March 2004, involving several high Armenian personalities, including the Deputy Speaker of the Parliament and Minister and Deputy Minister of Territorial Administration. The Council of Europe delegation met also with the Minister of Justice of Armenia and a joint meeting was organised with the Committee on Local Self-Government of the President of Armenia to discuss the implementation and updating of the Action Plan. The seminar focused on three topics:

1.          status of local government staff:  the seminar gave the opportunity to discuss a preliminary draft law on “Local government staff” and identify the necessary improvements to be carried out.

2.          Territorial administration: the participants discussed the powers of field agencies of the State administration (prefects) vis-à-vis the local authorities as well as the organisation of these field agencies and the methods of legal regulation in these areas.

3.          Reform of the status of Yerevan:  the participants discussed various options, in particular, the establishment of an inter-municipal body (consortium) among the existing communities (districts) of Yerevan until more far-reaching changes could be expected in the medium term from the forthcoming constitutional reform.

Ÿ           Written reports prepared by the Council of Europe experts on these subjects have been transmitted to the Armenian partners to help the Armenian authorities in taking the further steps in accordance with the Action plan, the implementation timetable of which was amended.  The following steps have been identified as priority measures, in accordance with the Action plan: to finalise the draft law on “Municipal Service” and to resubmit it to the Council of Europe for the final legal appraisal, to prepare draft instruments on territorial administration and submit them to the Council of Europe for legal appraisal and to carry out the necessary political consultations on the reform of the status of Yerevan in order to prepare a policy document and launch the discussion on the necessary legislative measures to implement it.

Ÿ           The revised implementation calendar of the Action Plan has just been approved internally by the Armenian authorities. In addition to the issues discussed above, the Action plan provides for work to be undertaken in 2004 concerning resources and competences of local authorities (leading to appropriate amendments to the law on local self-government), inter-municipal consortia (particularly relevant for the reform of the status of Yerevan and leading either to amendments to the law on local self-government or to a separate law), legal protection of mayors and supervision over local authorities action.

Ÿ           The Group welcomes the establishment of an institutional platform for the implementation of the action plan on local democracy.

Ÿ           The Group also welcomes the results of the seminar of 2 and 3 March 2004 and the approval by the Armenian authorities of the revised implementation calendar of the Action plan. It accordingly encourages the Armenian authorities to proceed with the implementation of the Action plan taking into account the Council of Europe expert opinions.

A plan of action and a timetable have been elaborated with the CoE experts according to which the Draft Law on Self-Government has already been elaborated and sent for expertise by the end of June 2004.

The law on municipal service (Local government staff) was sent to CoE in June and appraisal was received in July. This draft will be included in the agenda of the Parliament’s autumn session. The first reading is foreseen in October.

The other two draft laws will be worked out by October and sent for expertise.

ARMENIA

III.        Constitutional reform, legislation and ratification of the legal instruments of the Council of Europe

Constitutional Reform

The international conference on constitutional reform in Armenia, organised by the Ad hoc Commission on European Integration of the National Assembly in co-operation with the Venice Commission, took place in Yerevan on 20-21 January 2004. It was attended by most parliamentary factions. At the Conference Mr Torosyan committed himself to genuinely involving the opposition in the constitutional amendment process. One of the leaders of the opposition, Mr Shavarsh Kocharian (National Democratic Party, of the Justice Bloc coalition), who was rapporteur at the Conference, also committed himself to co-operating constructively with the majority towards preparing one common, satisfactory text of constitutional amendment. Several NGOs were also present and Mr Torosyan accepted involving them too.

The following time-frame for the constitutional reform was decided:

·         by the end of April 2004 the text of the constitutional amendments will be submitted to the Venice Commission and to the parliamentary political factions.

·          In June 2004, upon receiving the VC’s opinion, meetings will be held with the VC, the political factions and representatives of civil society with a view to finalising the text, which will then be again submitted to the VC, whose final opinion is expected for October 2004.

·         Following a further meeting with the VC, the text will be submitted to parliament.

·          The referendum should take place in June 2005 at the latest.

The calendar recently sent is in accordance with this decision and the Venice Commission expects the text of the draft amendments by the end of April.  However the Group cannot but express its concern at the recent deterioration of political dialogue in Armenia.  It therefore:

·         strongly urges the main political forces in Armenia to work together constructively in order to pursue democratic reform, constitutional reforms being an absolute priority;

·         requests that the Armenian authorities and the various political parties all make an effort to accept the necessary compromises when jointly drafting the text of the revised Constitution, taking into account the recommendations of the Venice Commission;

·         strongly urges the Armenian authorities to respect the timetable for constitutional reform agreed with the Venice Commission.

Aftermath the events of April 2004 in Armenia, in order to fulfil the PACE Resolution N1374, as well as to provide a wider consensus on constitutional amendments, the deliberations over the constitutional reform were suspended expecting the opposition to accept the proposal to join the work. Unfortunately, it did not happen, and the authorities resumed the work to respect the deadline for constitutional reform. The draft was ready at the end of June and was sent to the expertise of Venice Commission on 2 September 2004.  The consideration of draft will be included in the agenda of the Parliament’s autumn session.  The opposition will be given another opportunity to take part in preliminary discussions of the draft in appropriate Parliamentary commission.

Another draft of reforms was developed by a representative of opposition, which is in stage of translation to be sent to the Venice Commission expertise. It is envisaged that two drafts will be considered simultaneously.   

Criminal Code

The Group raised the question of an amendment to the criminal Code (Art 75(6)) which excludes some inmates convicted to life imprisonment from an early release.  This is not in line with the Committee of Ministers’ Recommendation, nor with ECHR case law. The Armenian authorities give no information but indicate it will be possible to make amendments during 2004.

Following the confirmation of this concern by the Council of Europe experts, an expert meeting on this matter took place on 19 April 2004. The Group will be informed of the results of the discussions.

The reference must have been made to the Article 76(6) instead of the Article 75(6). The amendments to the Criminal Code were finally adopted on June 9, 2004. The text was sent to CoE experts at the end of June 2004. According to these amendments, the 2nd paragraph of the Article 76(5) became invalid, after which the restrictions for conditional release of persons sentenced to life-imprisonment for separate offences, were abolished.

The Code of Criminal procedure

The Action Plan foresees the possibility of draft amendments to be submitted to the Council of Europe for an expertise in June 2004. Previous Council of Europe legal appraisals should be taken into account in this drafting exercise.

The Council of Europe confirms its availability to continue to assist in the reform and the Group asks the Armenian authorities to take into due account the recommendations of the Council of Europe experts.

The Group also reiterates its interest on seeing the law on police being amended, taking into account previous Council of Europe experts comments. Additional expert appraisals can be organised on an amended law to be submitted to the Secretariat.

Draft amendments to the Criminal Procedure Code refer generally to the modification of the Chapter 54 of the Code, by adding new chapters related to legal assistance in criminal matters, specifically: (a) setting up the requirements of the international agreements of the Republic of Armenia in the national legislation, (b) providing regulations of issues of legal assistance in criminal matters between the Republic of Armenia and appropriate states on the basis of reciprocity, in case of absence of such agreements.

These amendments have already been elaborated and after translation will be submitted for expertise.

At the same time, taking into consideration the 5,5 years experience of the Code’s practical application, it is intended to make some corrections and clarifications regarding comprehensive protection of human rights in whole process of criminal proceedings.

Some part of CoE expert assessments, which does not refer to the principal issues is taken into due account in the draft law. Armenian authorities consider that the discussion of principal issues, which is raised in the previous CoE expert assessment, may be touched upon after submitting this draft law to the National Assembly in the prescribed order.

           

The above mentioned principal issues are:

-          possibility for an accelerated proceedings;

-          withdrawal of some criminal procedure principles stated in the Code;

-          contradiction of the Code’s several provisions (e.g. Article 69) to the European Convention on Human Rights;

-          rendering of judgment on person’s guilt by more than one judge with the participation of jurors;

-          and other recommendations.

Those are fundamental issues, aiming to modify radically the Criminal Procedure Code.

Armenian authorities highly appreciate the offer of co-operation in elaboration of the new Code and are ready to workout a specific plan and a timetable this autumn.

As to the law on Police, all the amendments on the draft law proposed by experts have been taken into account. The expert opinion from the CoE was received in August 2004 and currently is being discussed by the relevant authorities.

Corruption

As Armenia has now acceded to GRECO, the comments on the national Strategy will be provided in the framework of GRECO evaluation process.

The seminar on the fight against corruption, which took place from 19 to 21 January, allowed the discussion of the Anti-Corruption Strategy, the Council of Europe approach against corruption as well as the Criminal and the Civil Law Conventions on Corruption. Moreover, GRECO procedures were analysed in detail as well as practical aspects of Armenian involvement following formal accession.

A legal expertise of the draft preventive anti-money laundering law has been recently completed and is to be forwarded to the Armenian authorities in a very near future.

The Group urges the Armenian authorities to take into account the Council of Europe experts’ recommendations on the draft preventive anti-money laundering law.

The National Assembly ratified the Criminal Law Convention on Corruption and its additional Protocol on 9 June 2004.The instruments of ratification will be deposited with the Secretary General of the Council of Europe in September 2004.

Armenia signed the Civil Law Convention on Corruption on 17 February 2004. The convention will be submitted to the parliament for ratification during its autumn session.

The 12th Plenary meeting of the Select Committee of Experts on the evaluation of Anti-Money Laundering Measures (MONEYVAL) discussed in July and adopted for the first round the detailed assessment report on Armenia. Relevant recommendations were issued as well.

The Anti-Corruption Council was established on 2 June 2004 by a Decree of the President of Armenia to ensure the effectiveness of the anti-corruption policy and improve the activities of fighting corruption.

Administrative detention

The authorities indicate that they are in the process of preparing a Code on Administrative Violations and that they will discuss it with the Council of Europe.  The Council of Europe stands ready to organise an expert meeting with the Working group of the Ministry of Justice to discuss this reform, on the basis of a text which the Secretariat could soon receive from the Armenian authorities.

The Group confirms its interest in seeing the Code on Administrative Violations amended in conformity with European standards and urges the authorities to submit the text to the Council of Europe as soon as possible.

In the Republic of Armenia nobody can be subject to detention without a court decision. Therefore, the term “administrative detention”, which remains from the Soviet era, currently has no relation with reality. It may refer only to some administrative offences for which the Court may decide to apply detention up to 15 days in exceptional cases (Article 31 of the Administrative Offences Code).

Although in the Code it is mentioned as an “administrative detention” because it applies to administrative offences, in fact it is a “judicial detention”.

However, currently a new draft of Administrative offences Code is in elaboration process, in which the Council of Europe recommendations on this issue will be taken into consideration. After the elaboration of the draft Code, it will be submitted for international expertise, also for CoE estimation.

Based on experts’ conclusions corresponding corrections will be done.

It would be added that the extract with the relevant articles on administrative detention was sent to the CoE expertise on June and the assessment is expected in September 2004.

European Convention on Human Rights

The Regulations on the “Representative of the Government of Armenia in the European Court of Human Rights have been forwarded the Government Agent was appointed in March 2004.

The Group welcomes the appointment of the Government Agent.

The 2004 programme of assistance activities to be implemented by the Human Rights Co-operation and Awareness Division – DG2 to enhance and support the Office of the Government Agent was adopted in November 2003. It has now been forwarded to the Permanent Representation and is published on CEAD. It includes a training session for the Government Agent on the functioning of the European Court and the work of the Government Agent’s Office as well as provision of a human rights library/documentation to the Government Agent’s Office. Provision has also been made for an expertise to be carried out on the Regulations on the Government Agent Office.

The Group encourages the Armenian authorities to make full use of the assistance of the Council of Europe.

The Armenian Government Agent already co-operates with appropriate Division of Council of Europe within the framework of the program of assistance for the Government Agent to the European Court of Human Rights and his/her Office.

The Armenian Government Agent to the European Court of Human Rights was on a training visit to Strasbourg on June 7-11, 2004. 

Activities are carried out to establish the Agent’s office, to recruit and to form the staff. Suggestions have been received in this regard. Particularly, it is planned to elaborate and adopt appropriate legal acts concerning the financing of Office employees and the definition of their status. At the same time, it is necessary to organize training courses for staff members in order to improve their skills in English and French.

The Government Agent has asked the European Court of Human Rights to provide appropriate library within the framework of the program. The consent has already been reached upon this matter.

European Convention for the prevention of Torture and Inhuman or Degrading Treatment or Punishment.

The authorities transmitted, in due time, their interim and follow-up responses to the report on the CPT’s 2002 periodic visit to Armenia. In the course of the recent (20-22 April 2004) ad hoc visit, the authorities announced that a formal request to publish the report and responses would be addressed to the President of the CPT shortly..

The Group encourages the Armenian authorities to publish the report as soon as possible.

The CPT report and the responses of the Armenian Government have been made public with the agreement of the Armenian authorities on 28 July 2004.

ARMENIA

IV.       Functioning of the judicial system, the prison system and conditions of imprisonment

Judicial reform:

An expert meeting on the three main laws organising the judicial system in Armenia (law on the status of judges, law on the Council of Justice and law on the judicial system) took place organised in Lisbon (Portugal) on 18-19 March 2004.

The participants agreed on positive conclusions, which include amendments to these laws and the strengthening of the role of an independent body as well as judicial training in the appointment process of judges. 

The Group urges the Armenian authorities to follow the conclusions of the expert meeting held on 18-19 March 2004 and draws their attention once again to the 4^th Progress Report of the Group which states in paragraph 29 that “in the areas governed by the Constitution and calling for transitional measures, the delegation emphasised independence of the judiciary which, according to the PACE, should materialise in concrete measures by the end of 2004. The President undertook to make the necessary adjustments to the procedure for appointing the Judicial Council and judges.”

At present stage of judicial reforms, the draft amendments to the laws “On Judicial System”, “On Council of Justice” and “On Status of Judge” have already been elaborated and submitted to the National Assembly. They have been sent to the CoE expertise.

These laws are foreseen to be adopted by the National Assembly till the end of 2004.

Lawyers

The written appraisal by the Council of Europe experts on the proposed amendments to the law on lawyers has been completed by two Council of Europe experts and was sent to the Armenian authorities recently. The organisation of an expert meeting is foreseen to discuss the experts’ recommendations and comments in order to finalise the draft law.

The Group urges the Armenian authorities to avoid any delay in the organisation of the above-mentioned expert meeting and insists that the comments of the Council of Europe be taken into account in the final law.

The expert meeting took place on 17-18 June 2004.  The comments of the CoE experts are taken into account and the Draft Law on Lawyers is already in circulation at the National Assembly and will be discussed during its autumn session.

ARMENIA

V.        Freedom of the media, status of NGOs and freedom of religion

Law on Radio and Television

Amendments to the Law on Radio and Television were adopted in December 2003. Unfortunately, the draft amendments were not sent to the Council of Europe for expertise in time before their adoption. The Secretariat has analysed the Law as amended. It contains a number of improvements, in particular as regards the new appointment procedure for the broadcasting regulatory bodies, i.e. the National Commission on Radio and TV and the Public TV and Radio Council. Members of these two bodies will continue to be appointed by the President of the Republic, but following a transparent procedure where names of candidates will be known to the public in advance, as suggested by the Secretariat in a written proposal.

It has to be pointed out, however, that the provisions aimed at increasing transparency in appointments will only apply to future members of the regulatory bodies. It might therefore take years before these bodies have been renewed on the basis of the new system.

The Group encourages the Armenian authorities to consider ways to renew rapidly the composition of the two regulatory bodies on the basis of the new system of appointment. By doing so, the Armenian authorities would demonstrate their willingness to abide by the democratic principles of broadcasting regulation promoted by the Council of Europe.

On other matters, the draft amendments are not fully satisfactory.

·         Firstly, the Law still contains an obligation for Public TV and Radio to carry official statements which may compromise its independence.

·         Secondly, the amendments widen the possibility for the National Commission on TV and Radio to withdraw a broadcasting license so that this can now be done for a large number of violations of the law, including in instances where such a heavy sanction may be disproportionate (for example, in case of broadcasting of “horror movies”).

·          Thirdly, the obligation for the NCTR to motivate its decisions, introduced with the amendments, regarding the granting or the refusal of licence, should be welcomed as such.  It would, however, have been preferable to go further, as recommended by the Council of Europe[2], and impose on the NCTR a duty to duly motivate all its decisions for the sake of transparency and accountability. It is hard to see why the Commission should not be expected to motivate, for instance, decisions taken on the basis of Article 58 to suspend the programmes or activities of particular radio or TV stations.

Since these questions are not addressed in the roadmap provided by the Armenian authorities, the Group asks whether any steps will be undertaken to remedy these shortcomings.  This seems even more important in view of the recent events in Armenia when there seemed to be a media black-out on the demonstrations which took place on 12-13 April 2004.  The fact that national TV did not report on these demonstrations and that the Russian NTV Channel was interrupted, demonstrates that the electronic media in Armenia cannot exercise their right to report freely.

1. The National Commission on Television and Radio (NCTR) notes that the current composition doesn’t impede the transparency of the NCTR activities:

            - One of the main functions of the NCTR is that tenders of licensing TV and radio broadcasting is implemented in a public, open and transparent way, all sittings of the NCTR, including the sittings on the licensing of the TV and radio broadcasting, are conducted openly in the presence of the media representatives.

            - 7 out of 9 members of the NCTR work voluntarily.

            - Varying voting points given by the members of the NCTR during the tenders of TV and radio broadcasting licensing are also an implication of their objectivity.

On October 13 2003, the voting results of the tender for TV broadcasting licensing for the 63rd microwave on the territory of Yerevan were as follows: 2 members gave 2 points to “A1+” TV Company, 1 member – 5 point, 4 members – 3 points, 1 member – 4 points. On December 29, 2003 during the rating voting of the tender of the licensing of TV broadcasting by the 56th microwave 7 members gave 3 points to “A1+”, 1 member-4 points, 1 member – 5 points.  

The fact that all the NCTR members are not engaged in any political party is also an important factor for providing impartiality.

2. As to the possibility of broadcasting license withdrawal by the NCTR, the latter informs that it hasn’t yet applied such an administrative sanction. The National Assembly is empowered to revise the broadcasting license withdrawal and suspension cases if necessary.

3. According to Article 58, by applying an administrative sanction, the NCTR motivates its decisions by describing the case of violation, noting its evidences and the concrete legal provision, which is violated by that action. The decision on application of an administrative sanction is made not on the subjective approaches of the NCTR members but on the basis of the procès verbale prepared by the Control and Monitoring department of the NCTR and signed by the TV or radio company, which has violated the law.

Regarding the activities of the mass media during events on 12-13 April 2004, the NCTR notes that the broadcasting of none of the private TV stations was stopped. As to the “NTV” Russian TV station, then according to information that the NCTR possesses, broadcasting of the programs of that company was stopped in the beginning of April, 2004 because of the problems with the transmitter, which have not been recovered by the “Paradise” LTD - the company  responsible for re-broadcasting the programs of the “NTV” in Armenia.

Licences to private TV stations

The last tender organised by the National Commission on Radio and Television at the end of December 2003 once again resulted in a refusal to grant a licence to A1+ TV.  A1+ has filed lawsuits against the National Commission requesting the courts to require the Commission to provide written substantiation of its refusal to deliver a licence at the tender on 11 June and 14 July 2003. The only motivation which A1+ received was a copy of the decision recognising another company as the winner of the tender. A court of 1^st instance rejected A1+’s claim on 23 March 2004 on the grounds that the NCRT’s motivation was sufficient. Since then, A1+ has launched an appeal at the hightest level (Court of Cassation) against that decision. 

According to information that the Group has received, the decision of the NCRT not to grant a licence to A1+ has unfortunately once again not been properly motivated. The Group considers that this is a serious shortcoming which questions the credibility and legitimacy of the licensing procedure and the NCRT itself. Accordingly, the Group hopes that a new frequency will soon be advertised and a tender carried out within the framework of the revised Law (cf. above) which would allow A1+ to apply once again.

The NCTR decision on granting of a license is made on the basis of the rating vote results. During the voting, NCTR members are guided by the criteria mentioned in the Article 50 of the Law on Television and Radio and not by the subjective convictions. It’s not accidental that A1+ Company has never disputed the results of the voting but only appealed to the court to get legal grounds for license refusal from the NCTR. Meanwhile, the Commission did not refuse to provide a license to A1+. The decision go grant the license was made on the basis of competition, and this fact may not be considered as a violation against opposition mass media. The obvious proof of the fact is that the founder of the A1+ Company “Meltex” LTD publishes the “Aib-Fe” daily newspaper and has its website.

As to the advertising of a new frequency within the framework of the revised Law, the NCTR notes that, according to the current Law on Television and Radio, it announces tenders for licensing the broadcasting of TV and radio programs in two cases – when there is a free frequency and when the duration of a license for broadcasting TV and radio programs has expired. The Ministry of Transport and Telecommunication, utilizing the list by the International Telecommunication Union (ITU), makes up a full list of frequencies destined for broadcasting TV and radio programs in the territory of the Republic of Armenia and provides regularly to the NCTR. Therefore, the organisation of a tender is possible only in the above mentioned two cases and has nothing common with the revision of the Law.

Defamation provisions in the Armenian Criminal Code

There is an agreement of the Armenian authorities to reconsider the defamation provisions in the Penal Code in 2004. In line with the roadmap provided by the Armenian authorities, an expert meeting was held in Yerevan on 19 April 2004 to facilitate the drafting of amendments.

The Group welcomes the willingness of the Armenian authorities to reconsider the defamation provisions in the Penal Code and expresses the firm hope that the revision of the Code and its alignment with European standards, in particular the case-law of the European Court of Human Rights, will indeed take place before the end of 2004.

Amendments to the Criminal Code of the RA have been adopted on 9 June 2004, which will be sent to the Council of Europe soon.

Law on freedom of information

The Armenian authorities have declared their intention to amend the Law on freedom of information which was adopted in 2003. This has provoked concerns in the journalistic community on the grounds that the planned changes may restrict access to official documents.

The Group invites the Armenian authorities to indicate if they intend to amend this very important legislation and in what respect. The Group would like to recall that any draft amendments should be submitted to the Council of Europe in good time before Parliamentary readings so as to ensure their conformity with Council of Europe standards, in particular Recommendation (2002) 2 of the Committee of Ministers on access to official documents.

Armenian authorities inform that there is no intention to revise this law.

Violence against the media

According to information that the Group has received, several media professionals were attacked when covering an opposition meeting in Yerevan on 5 April and again on 12 – 13 April 2004. Some of the journalists were injured and cameras broken. Allegedly, the police officers who were present, did not intervene to protect the journalists. Furthermore, transmissions of the Russian TV station NTV and the distribution of the Russian newspaper, Nezavisimaya Gazeta, providing coverage of the demonstrations, were allegedly stopped.

The Group recalls the importance of the freedom of the media to report about political events in a democratic society and the obligation of the authorities to protect media professionals against violence. The Group expects the Armenian authorities to carry out a thorough investigation into these incidents and bring those responsible to justice. Failure to do so will send a very unfortunate signal to those who do not respect the right of the media to report freely. The Group asks to be kept informed about the results of official investigations.

In relation to the above-mentioned fact, in accordance with the Article 258 (3) of the Criminal Code, a criminal case was instituted on 08.04.2004. The criminal case has been investigated by the Prosecutor's Office of Yerevan city.

The preliminary investigation showed that during the public disorder at the rally held near the Matenadaran at about 16 p.m. on April 5, 2004, Hrayr Harutyunyan and Ashot Avetisyan had deliberately damaged the photo-cameras belonging to several employees of certain mass media. They were charged in accordance with the Article 185(1) of the Criminal Code on 21.05.2004. They pleaded guilty in the charges brought against them. The part of the criminal case on deliberate damaging other's property by Hrayr Haroutiounian and Ashot Avetisian was separated from the criminal case on 31.05.2004 in accordance with the Article 28 of the Criminal Procedure Code. It was sent to the Court of First Instance of Kentron and Nork-Marash districts. The court brought in a verdict according to which Hrayr Haroutiounian and Ashot Avetisian were fined 100,000 drams each.

During the criminal case Hayk Gevorgyan, the photo-reporter of “Haykakan Jamanak” (Armenian Time) newpaper, Anna Israyelyan, journalist of “Aravot” daily, Romik Khachatryan, TV operator of “Hayloor” news service, Tigran Barayan, operator of “Kentron” TV Company and Nikol Pashinyan, Editor-in-Chief of “Haykakan  Jamanak” daily, were recognized as victims.

Draft “Law on rallies”

The draft law “on the procedure of conducting gatherings, meetings, rallies and demonstrations” was submitted to the Venice Commission by the Vice Speaker of the Assembly, Mr Torosyan in March (English translation received on 4 March 2004). 

Mr Torosyan at first indicated that the draft law would be examined in the first reading at the beginning of May. He later requested the Venice Commission expertise by 20 April 2004. On 29 March, however, the Secretariat received information that parliament had examined the draft law in first reading. The second reading was scheduled for 12 April 2004, which is in sharp contrast with the Timetable of Completion submitted to the Group on 4 March which provides for the first reading in September and the second reading in December. However, due to the opposition’s boycott of parliament, the sitting has been postponed.

The Venice Commission’s comments were sent to Mr Torosyan on 8 April 2004. The experts reached the conclusion that the draft law aims at regulating the right to freedom of assembly in too much detail, which amounts to preventing the free exercise of such right. Substantial reconsideration of the draft law is therefore recommended.

The Group:

•           underlines the need for co-operation between the authorities and the Council of Europe in a manner allowing for a real input by Council of Europe experts and respecting previously given indications;

•           expresses its surprise as to the procedure followed by the National Assembly with respect to this law;

•           suggests that the authorities do not adopt a text which would be contrary to the recommendations of the Council of Europe experts and risk being in contradiction with the standards of the European Convention on Human Rights.

In this context the Group would like to raise the issue of people arrested during and in connection with the demonstrations which took place on 12 and 13 April 2004.

-           How many people have been arrested and on what legal grounds?

-           Are there parliamentarians among those arrested or still detained?  If so, has their parliamentary immunity been lifted?

-           How many people are still detained?

The adoption of the Law on conducting gatherings, meetings, rallies and demonstrations before the date envisaged in the timetable was motivated by the rallies conducted in April-May 2004. In the absence of law, these issues were regulated by over ten-year-old ill-timed decisions of the Supreme Soviet, which could have had undesirable consequences and become one of the main causes of the regretful events on April 12‑13, 2004. The law was substantially modified before its adoption. The Law entered into force on May 22, 2004. The positive tendencies of the regulation of the processes in this field became obvious after its adoption. The law clearly states the rights and obligations of the police and the demonstrators according to Article 11 of the European Convention on Human Rights. After the official conclusions of the Venice Commission on 18-19 October 2004 are made, the issue of amending the law may be discussed, in case of necessity.

As to the issues of people arrested during and in connection with the demonstrations, which took place on 12 and 13 April, 2004, raised by the Group, the Office of Prosecutor General states that:

- In accordance with the Articles 301 and 318 of the Criminal Code the General Prosecutor’s Office instituted a criminal proceeding on 31.04.2004 for insulting the authorities and for making appeals to overthrow the state authority by force. A criminal case was instituted on 10.04.2004 against Gevorg Mesropyan and Artur Mangasaryan for illegal carrying of guns and armed participation in the rally held on 08.04.2004 with an aim of a terrorist act. A criminal case was instituted on 13.04.2004 for undertaking actions aimed at seizing the power by force.

The aforementioned three cases were united on 14.04.2004 within the framework of which 12 people were arrested. Three of them were released. Charges determined by the Criminal Code of the RA for such crimes were brought against the other three. The Court chose custody as a preventive measure. The criminal cases brought against three out of nine were cancelled. The preventive measure was abolished. The custody inflicted on one of them as a preventive measure was changed. The criminal case instituted against two of them was sent to the court. Three defendants are in custody.

- There are no deputies of the National Assembly among those arrested and in custody.

- As to the administrative detention, from February 19-May 21, 421 people incurred administrative

penalties, 217 of which were detained and 204 were fined.

Eventually, all detainees were released.

Law on Alternative Service

An unofficial version of the text of the law was forwarded to the Secretariat by the OSCE Office through the Special Representative of the Secretary General  in Yerevan on 19 January 2004. 

The official text of the law as adopted after the 3rd reading was sent for expertise. The expertise was carried out by a Council of Europe expert from the European Bureau for Conscientious Objection. The law will enter into force on 1 July 2004. The law, while introducing the principles of alternative service in Armenia, still falls short of European standards in a number of aspects (eg grounds, duration, procedure).

The Group welcomes the forthcoming introduction of a new law on alternative service, but regrets that, despite the recommendations of the expertise carried out by the Council of Europe, the law still falls short of European standards and urges the Armenian authorities to address these shortcomings.

The draft Amendments to the Law on Alternative Service of the RA initiated by several parliamentarians is in the process of elaboration at present.

Working version of the draft Amendments aimed to define the composition of bodies dealing with the alternative service applications. Relevant amendments are envisaged to the articles 3, 6-13. The other amendments concern the modalities of passing to alternative military or labor service, the liabilities of the chief (commander) of the place of alternative service for organizing and conducting the service, as well as the alternative servicemen’s rights and obligations, social security etc.

Order N° 551-A

A letter was received on 28 January 2004 from the Armenian Permanent Representative indicating that Order 551-A was cancelled on 19 January 2004 and replaced by order 8-A which was signed on 13 January 2004.

The Armenian authorities forwarded the order to the Council of Europe on 17 February 2004 for expertise, which is currently in hand.

The Group welcomes the transmission of this text and will comment on it when it has received the results of the expertise.

ARMENIA

VII.      Nagorno-Karabakh

While this year marks the tenth anniversary of the cease-fire, Armenia and Azerbaijan should have no illusions about the role of the time factor. Maintaining the status quo is working against peace, prosperity and stability in the South Caucasus.

The Group therefore solemnly requests that the parties engage more actively in negotiations, without preconditions, in order to arrive at a fair and lasting settlement of the conflict with the help of the Co-Chairs of the Minsk Group.

The Group also invites Presidents Aliyev and Kocharian to pursue the direct dialogue they initiated in Geneva last December and reminds them that, upon acceding to the Council of Europe, Armenia and Azerbaijan undertook a commitment to do everything in their power to settle the Nagorno-Karabakh conflict by peaceful means. It asks them to be open-minded and to show political vision and courage, as responsibility for peace lies with them first and foremost.

Armenia continues to extensively search for peaceful and negotiated solution to Nagorno-Karabakh conflict.

Therefore, Armenia engages in good faith in OSCE Minsk Group sponsored negotiations.

This year, already four rounds of talks have taken place between Foreign Ministers of Armenia and Azerbaijan.

The second high-level meeting between Presidents Kocharian and Aliev will take place during the CIS summit in Astana in mid September.