COUNCIL CONSEIL OF DE L'EUROPE Committee of Ministers Comite des Ministres

1n1:~te;r.\' Deputie.~ I Working Groups GT -SUIVI .AGO Monitoring Group

GT-SUIVI.AG0(2004)1 (Confidential) 23 January 2004

Replies by to the questionnaire sent on 4 December 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 30 January 2004 01/02/448

Strasbourg, le 19 janvier 2004

Monsieur Pietro Ercole AGO President du GT -suivi.Ago Comite des Ministres

Monsieur Ie President,

Je fais suite au courrier en date du 9 decembre 2003 que vous avez adresse a Monsieur Vartan OSKANIAN, Ministre des Affaires etrangeres d' Armenie, concernant le respect des engagements pris par I' Armenie Iors de son adhesion au Conseil de !'Europe.

J'ai l'honneur de vous communiquer les reponses au questionnaire que vous nous avez transmis, ainsi que les documents joints.

Je souhaite attirer votre attention sur Ia question relative a l'ordre 551A; selon nos informations, le Chef de Ia Police de Ia Republique d' Armenie a signe, le 13 janvier dernier, un nouvel ordre qui vient remplacer l'ordre 55 I A, dont il nous sera possible de vous donner plus d'information sur son contenu dans les jours qui viennent.

Je me tiens a votre disposition pour toute information complementaire qui s'avererait necessaire.

Je vous prie de croire, Monsieur le President, en !'assurance de rna haute consideration.

Christian TER STEPANIAN Ambassadeur, Representant permanent

Annexe: pages (les reponses des autorites armeniennes apparaissent en gras-normales) COUNCIL CONSEIL OF EUROPE DE L'EUROPE Committee of Ministers Comite des Ministres

/Mtegw},\ des /11/inistre,s I Groupes de travail GT -SUIVI .AGO Groupe de suivi

GT-SUIVI.AG0(2003)1 0 final (Confidential) 5 December 2003

Analysis of the replies given by ARMENIA to the questionnaire sent on 24 June 2003 on the outstanding obligations and commitments undertaken on accession to the Council of Europe and further questions

Please note that the replies have been inserted in to the questionnaire sent by the Group,

This document does not appear on Internet GT-SUIVI.AG0(2003)10 2 Analysis -Armenia Introduction

Introduction

As the Group said in its last report, progress by Armenia towards the honouring of her obligations and commitments undertaken on accession to the Council of Europe has come to a halt before the elections. The Group accepted that this has been due mainly to the electoral sequence- both presidential and parliamentary- in the country. Both elecbons have taken place and the Group expects that the majority of the outstanding commitments will now be fulfilled, particularly as the deadline of 2 years after accession for this to happen, passed nearly a year ago.

The Group notes that since the elections and in accordance with the programme and timescale provided by the Armenian authorities, a number of positive steps have already been taken (abolition of the death penalty, adoption of the law on the Ombudsman, organisation of a seminar on local self-government and on amendments of the electoral code). It encourages the Armenian authorities to abide by the agreed programme and to seek Council of Europe advice and expertise every time they committed themselves to do so.

Significant progress in the respect of commitments is all the more crucial as the state of play concerning Armenia's honouring of her obligations will be examined by the Parliamentary Assembly at its Session in January 2004. Furthermore, a delegation of the Group will visit the region again at the beginning of February 2004 when significant progress in all the matters mentioned in this questionnaire must be evident. 3 GT-SUIVI.AG0(2003)10 Analysis - Armenia Theme Ill

I. Elections and electoral law

The reply by the Armenian authorities underlines a number of points, which should be modified in the law and the electoral administration of Armenia in order to ensure the holding of elect1ons 1n conformity with European standards.

The Group is pleased to note that the Armenian authorities are ready to revise the electoral law and the electoral administration in order to remedy the shortcomings noticed during the last elections.

The Group underlines that an electoral law, even if it is in conformity with the international standards, remains of limited value without proper implementation- a point which regrettably was again demonstrated during the latest Presidential and Parliamentary .

The Group refers to its previous analysis (GT.SUIVI.AGO (2003) 6final) and underlines the main points on which a revision of the legislation and/or of the practice is needed:

- the proper tabulation of the election results; -concerning the appeals procedure, the elimination of the shortcomings identified by the Constitutional Court, the IEOMs and the Venice Commission, including through a legislative revision; - the need for a balanced use of public resources; -the complete information of both national and international observers on the requests for recount and complaints received; -the need for a proper implementation of the electoral legislation, including the elimination of electoral fraud, open voting or the presence in polling stations of unauthorised persons, including government officials, as well as for the respect of counting procedures; -the elimination of the violations of the rights of the commission's members, proxies and observers; -the immediate publishing and posting of the protocols about the results of elections; -the publication of a prompt and detailed breakdown of the preliminary results by constituency and precinct, on the website of the CEC; the same is true for the regular publication of turnout figures; -the integral broadcast of the statement of preliminary findings and conclusions of the international election observation mission by public-funded TV at prime time on the day they are issued; - the respect of the obligation of neutrality by public TV; - the appropriate training of the members of election commissions and of proxies; -a consistent application of the legal provisions on registration of candidates.

In this context, the Group asks the Armenian authorities what sanctions have been taken and what procedures have been initiated against the persons responsible for violations of the electoral law during the last elections.

It also asks once again for the prompt publication of the results of the census, taken towards the end of last year, in order to ensure that the accuracy of the voters' lists can be checked in a fair and transparent manner.

The Council for Democratic Elections should adopt at its next session a report on the election law and the election administration in Armenia. The Group invites the Armenian authorities to follow the recommendations of this report and encourages them to pursue their co-operation with the Venice Commission towards the revision of the election code.

The Central Electoral Commission of the Republic of Armenia • to ensure necessary conditions for free formation and expression of voter's opinion; • to organize and hold elections in conformity with European standards; • taking into account shortages noticed during the last elections and shortcomings of the present Electoral Code; GT-SUIVI.AG0(2003)1 0 4 Analysis -Annenia Theme Ill is convinced that the electoral legislation of the Republic of Armenia and electoral administration should be improved.

Particularly: - to regulate the procedures of the tabulation of election results and their proper publication, including the publication of results on the website of the CEC, by amending it as the requirement of the legislation; to revise appeal procedures, to determine proper timeframes for discussion of complaints and decision making process, the mechanisms for providing necessary information to observers; to review provisions regarding the composition of electoral commissions, to regulate the working hours of electoral commissions; to regulate relations between the members of commissions and proxies, to separate their authorities; to amend the legislation by requiring obligatory training of electoral commission members, to organize training of the members of electoral commissions before the next elections to implement the electoral legislation in the best possible way; - to review the forms of protocols of election results; - to create computer network between the CEC and Territorial Electoral Commissions, which will provide quick transfer of election results to the CEC.

After the presidential and parliamentary elections in Armenia the CEC • initiated and held discussions regarding possible changes of the electoral legislation with interested sides; • started systematization of voter lists; • created appropriate data base of acting leaders of the local self-government bodies and the members of community councils; • regulated the problems regarding the assignment of the elections to local self­ government bodies; • established the Staff of the Central Electoral Commission, the employees of which are already civil servants; • conducts the training of the employees of the Staff; • continues improvement of electoral legislation.

According to the information provided by the Prosecutor General 28 legal actions were brought against people who violated the legislation during the last elections, two of which have been united under 1 case (total is 27). 8 cases have been sent to courts, on 5 of which verdicts have been passed, 1 case is under investigation, 8 cases have been dismissed, 10 cases have been suspended.

At the same time 246 of 513 members of permanently functioning commissions have been replaced after the last elections.

The Ad hoc Commission on the European Integration in the NA will discuss the issue of the liability of persons who have made violations at the elections at one of its meetings in March-April 2004. The Group will be informed about the results of the discussion thereon. 5 GT-SUJVI.AG0(2003)1 0 Analysis - Armenia Theme Ill

At the same time the deadline for the solution of the issue is set for the end of 2004 in the Report on the implementation of obligations and commitments undertaken by Armenia on accession to the Council of Europe and the Resolution to be discussed on the January 26-30 part-session of PACE.

As there is a constantly dynamic change of polls due to the active migration of the population, the results of the census were helpful only for the verification of the total number of people with the right to vote. New mechanisms are anticipated with regard to the further verification of voting lists, which are currently being worked out in co­ operation with the Venice Commission and the Democratic Elections Council.

In the framework of this co-operation the Memorandum was signed, in accordance with which the Electoral Code will be improved by the end of this year, and electoral processes, i.e. training of electoral commissions, technical assistance, etc. will be furthered for the coming two years.

In the framework of the reform of the Electoral Code the Democratic Elections Council summarized last year and submitted to Parliament the recommendations of international organizations and observation missions, and the Ad hoc commission on European Integration in NA - the recommendations of the CEC, the Constitutional Court and parties in parliament. It is planned to approve the timetable of the co­ operation with the Venice Commission and the Democratic Elections Council by mid February with a view to improve the Electoral Code by the end of 2004 and bring the electoral processes in 2005-2006 in conformity with international standards.

The Central Electoral Commission of the Republic of Armenia expresses its readiness to continue cooperation with European and international organizations to improve the electoral law and electoral administration. GT-SUIVI.AG0(2003)10 6 Analysis -Armenia Theme Ill

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

Law on Political Parties

According to the reply the Venice Commission should have received the text of the draft Law amending the Law on Parties by the end of October. This text has however not yet been received.

The Group stresses that the Venice Commission has not yet received the draft law on political parties and requests that the Armenian authorities to transmit the draft law as agreed.

The draft law which takes into consideration the two of remarks of the Venice Commission, which are not very important, will be circulated in February and at the same time will be sent to the Venice Commission for expertise.

Ombudsman

On 21 October the Armenian Parliament passed the law on the Human Rights Defender (Ombudsman) in the third and final reading by a broad consensus of members of Parliament (90 votes to 1). The adopted text takes the recommendations of the Venice Commission fully into account. Since the present does not permit the election of the Ombudsman by the National Assembly the Law provides, pending the entry into force of the new Constitution, for the appointment of the Ombudsman by the President "after consulting with the groups and factions represented in the National Assembly". The powers of the Ombudsman appointed by the President would expire within 30 days of the entry into force of the constitutional amendments.

The Group welcomes the adoption of the law on the Human Rights Defender and urges the Parliament and the to proceed with the appointment of the t•' Human Rights Defender on the basis of the broadest political consensus in Armenia, including both pro-governmental and opposition political forces in the country.

The high moral authority and impartiality of the person appointed to be the first Ombudsman will contribute greatly to the public confidence in the institution, which is essential for the observance in Armenia of human rights and fundamental freedoms.

The expectation of the Group to see an incorruptible person with high moral reputation on this post is fully justified. It is common knowledge that these requirements are also the legal norms and will be applied in the near future, when the President of Armenia will appoint the first Ombudsman following the consultations with all political forces represented in Parliament, including the opposition.

Local Democracy

A CLRAE report on local democracy in Armenia was adopted at the CLRAE autumn institutional session of 25 November. In summary, the CLRAE has reached the following main conclusions with regard to local democracy in Armenia :

1) Armenia's ratification of the Charter on 25 January 2002 demonstrated country's commitment to further reforms in the sphere of local government; 7 GT-SUIVI.AG0(2003)1 0 Analysis - Armenia Theme Ill

2) the Armenian legislature and Government made some limited progress, especially on the legal front, in reforming the system of devolved local government;

3) the Association of Local Communities of Armenia played a positive role in that process;

4) actual practice in local self-government needs to come into line with the provisions and spirit of the Charter, and existing legislation needs to be fully implemented;

5) although some changes have been introduced into domestic legislation since February 2000, including the enactment in May 2002 of a new Law on Local Self-Government (as amended 1n December 2002), the process of developing strong local communities has recently slowed, and many of the conclusions reached by the CLRAE in 2000 have a continuing resonance and validity;

6) in 2000 the CLRAE, while recognising the new character of local public institutions in Armenia, concluded that the functioning of local government was not without 'defects and shortcomings' which were expected to be rectified (in particular, in such fields as the financial and human resources of local authorities, the supervision of communities by central government and the status of );

7) in general, local self-government in Armenia remains weak and large elements of the Charter have yet to be implemented;

B) across Armenia as a whole, and especially in the rural communities, local government bodies have few substantial powers and their autonomy is compromised by an unsatisfactory financial regime and by a lack of other resources, such as the absence of a strong local civil service;

Consequently, with a view to removing unnecessary inflexibility, the Congress recommends the Armenian authorities to foster reforms of local self-government in the following areas: constitutional provisions, in particular with regard to the three-year periods of elective office, the status of Yerevan and the Government's power to remove chiefs of local communities, transfer of responsibilities, municipal service, legal supervision of local acts and elected representatives, local financing, municipal property and inter-community co-operation.

The Group urges the Armenian authorities to fully implement the recommendations made by the CLRAE and in due time to inform the Group and the CLRAE (at its autumn institutional session of 2004) about the progress made.

The Group notes, as does CLRAE, that progress has been made in terms of legislative reform and practice. As indicated in the reply from the Armenian authorities, a round table took place in Yerevan on 14-15 October 200, the encouraging outcome of which was the agreement on an action plan focusing on four key challenges:

• Ensure adequacy between local authorities' financial resources and responsibilities • Improve the efficiency of management of public affairs at local level • Improve the existing system of supervision over local authorities' action • Strengthen the status of local government staff.

This action plan defines the roles of different stakeholders, identifies specific objectives and details concrete measures/activities to be implemented to achieve these objectives and it takes account of most of CLRAE's concerns. The Council of Europe Secretariat has now completed the action plan with a tentative timetable, and will soon transmit the revised version to the Armenian authorities for their final approval.

The Group welcomes the adoption of the action plan as a constructive basis for further work to bring the law on local self-government and sectoral legislation into line with the principles of the European Charter of Local Self-Government. It stresses the importance that it attaches to a coherent follow up to this action plan and urges the Armenian authorities to make all efforts in order to keep to a stringent implementation timeframe. GT-SUIVIAG0(2003)1 0 8 Analysis -Armenia Theme Ill

We would like to provide the following information concerning the system of local self­ government: - the three-year term-in-office for local self-government bodies is a constitutional norm. In the package of constitutional reforms it was foreseen to prolong the term-in­ office for communities' leaders as well as of members of the community councils up to 4 years. Taking into account the fact that after constitutional reforms 4-year term-in­ office is provided by the new Constitution any certain period was not mentioned in the Law on Local Self-Government; the present model of Yerevan administration is entirely defined in the Constitution. A new structure of administration was proposed in the package of Constitutional reforms. By the decree of the President of Armenia (DfJ'-15 18.12.03) a new working group was created with representatives from the staff members of the President, National Assembly, Government and Ministry of Justice to implement reforms in the sphere of state administration and local self-government in the city of Yerevan; early suspension of responsibilities of communities' leaders by the Government is also a constitutional norm. The Law on Local Self-Government properly describes and restricts the cases when the Government is authorized to dismiss the leader of community. The leader of community can appeal to the court such decree of the Government; the Law on Local Self-Government considerably expands powers of communities' leaders as well as those of members of community councils. In particular, the right of levying property and land taxes were transferred to communities (in 2003 to local communities of Yerevan and to all city communities, and in 2004 to rural communities) including responsibility for organizing civil status registration works in those communities where they functioned (since January 2004); an important step on the way of the development of the community property institute was the transfer of lands being a state property to those communities within the administration of which they were. It has already been implemented in 250 rural communities. This process is actively going on and will be completed in 2004; Draft Law on Service in Communities was elaborated and submitted for public discussion. After final revision it will be submitted to the Government for discussion and, once approved, it will be presented to the National Assembly under the defined procedure; the in its Program of Activities underlined the necessity of promoting the formation of inter-community units. With assistance of international organizations (GTZ "Promotion of community development" program) a model package of legal norms for formation of intercommunity units was elaborated which will be submitted to regional administration and local self-government bodies.

As to our future cooperation with respective bodies of the Council of Europe, in the letter of the of Regional administration and local self-government of Armenia to Mr. W. Schwimmer it was suggested to implement it through the Committee on Local Self-Government under the President of Armenia. Consequently the final position concerning the working program and timetable should be received from the Committee. The reforms in this field will be continued in two ways. The Law will be improved in accordance with the recommendations of the CLRAE and CE experts in conformity with the European Charter on Local Self-Government. Besides a second stage of the 9 GT-SU IVI.AG0(2003) 10 Analysis - Armenia Theme Ill improvement of the Law will be prepared as a consequence of the forthcoming constitutional amendments which will remove a number of restrictions of the acting Constitution: three-year term of powers of community leaders, etc.

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

Constitutional Reform

The Venice Commission and the National Assembly of the Republic of Armenia plan to hold a Conference in Yerevan on 20 to 21 January to re-launch the process of constitutional revision.

The Group welcomes the initiative of the Armenian authorities to restart the process of constitutional reform and to organise the conference together with the Venice Commission. It urges the authorities to, from the very beginning, fully involve the opposition in the process of constitutional reform in order to avoid a possible further failure of the constitutional referendum. It would appreciate receiving regular progress reports on this question and wams against undue delays in adopting the revised constitution.

An international conference on the Armenian constitutional reforms organised by the Ad hoc Commission on European Integration of the NA in co-operation with the Venice Commission will be held in Yerevan on 20-21 January 2004. All political forces represented in the Parliament, including the opposition, are invited to attend the conference. Regarding the form of government (parliamentary or semi-presidential), which is the key political issue the representative of the opposition is invited as one of the two main rapporteurs of the conference, though other speakers are not politicians, but scholars.

Given the fact that the second quarter of 2005 is regarded to be a convenient date for holding the referendum, a time-table of constitutional reforms will be approved together with the Venice Commission following the conference.

These dates are also suggested in the report on Armenia's obligations and commitments to be presented at the PACE January, 2004 part-session. The Group will be regularly informed on the progress.

Criminal code

The Group is concerned by information it received on the adoption, in the final reading, by the Armenian Parliament of amendments to the criminal code (Art 75(6)) which will exclude some inmates convicted to life imprisonment from the possibility of an early release.

The Group is disappointed to leam of this amendment to the Criminal Code, which seems contrary to the progressive approach shown in abolishing the death penalty.

Depriving the possibility for life sentence prisoners could clearly contradict the Rec(2003)22 on conditional release (parole), adopted by the Committee of Ministers of the Council of Europe. It could also be considered as not being in line with the ECHR case law (see decision in Einhorn v. France, 16 October 2001, which did not exclude that sentencing someone to life imprisonment without parole GT-SUIVIAG0(2003)10 10 Analysis -Armenia Theme Ill could raise an issue under Article 3 of the Convention, which prohibits torture and inhuman or degrading treatment or punishment).

The Group therefore asks the Armenian authorities to rapidly provide information on these amendments, including on the procedures foreseen in the Armenian legislation, in order to ensure that the inmates touched by this amendment could have the possibility of benefiting from conditional release.

It will be possible to revert to the question of making the amendments to the Criminal Code during the year 2004.

Code of Criminal Procedure

The Group notes with satisfaction that a draft law on amendments on the criminal procedure code is being currently prepared.

Recalling its earlier recommendations on the revision of this code, the Group encourages the Ministry of Justice of Armenia to submit the draft law to the Council of Europe for a final review.

The Group asks the Armenian authorities when the additional supplements and amendments of the criminal procedure code, based on the Council of Europe expert's comments, will be submitted to the Council of Europe for review.

The Ministry of Justice of Armenia elaborates the Draft Law on Amendments in the Criminal Procedure Code of Armenia, which has been conformed with the Office of General Prosecutor and the . It will take certain time to submit the Draft Law to the Council of Europe due to its translation into English. It will be possible to send the English version of the Draft Law to the CoE till March, 2004.

Concerning the amendments on the principal suggestions made in the comments of the CoE Expert Group, a longer term is required, as far as a part of the mentioned comments foresees certain changes in the system of the criminal procedure.

Corruption

The Group notes with satisfaction that the preparation of the national strategy on anti-corruption has been finalised and that a draft programme will be sent to the Council of Europe. However, contrary to what was indicated in the reply, the Council of Europe has not yet received the draft.

The Group therefore asks the Armenian authorities to forward the draft strategy to the Council of Europe for an expert review without delay.

The Government of Armenia adopted decision N. 1522 on "The National Anti­ corruption Strategy and the Programme of its Implementation" on 6 November 2003, which was sent to the Council of Europe. The Programme on the Strategy of Fight against corruption was discussed with the missions of international organizations, NGOs, political parties, etc. and approved last year, and Armenian side will be grateful to receive comments of CoE experts on it.

On January 16 Mr. Vartan Oskanyan, Minister of Foreign Affairs of Armenia, sent the letter addressed to Mr. Walter Schwimmer, Secretary General ofthe Council of Europe, 11 GT-SUIVI.AG0(2003)10 Analysis - Armenia Theme Ill on the membership of Armenia to GRECO. On January 19-20 a seminar on the Fight against corruption and the cooperation with the Council of Europe in this field will be held in Yerevan.

Administrative detention

The Group has been informed that the hearings on the code of administrative violations before the Parliament have been postponed.

The Group would like to know more about this code as well as the reform envisaged and suggests that the code be submitted to the Council of Europe for an expert review. This is particularly important as apparently this administrative code was used in the aftermath of the Presidential Elections and led to a Recommendation of ODIHR to repeal a number of provisions contained in the code.

The Ministry of Justice initiated the elaboration of the "Code on Administrative Violations". Now the draft is in process of elaboration, which will be finalised during the year 2004.

In conformity with the preliminary agreement, the provisions of the Administrative Offences' Code, which relate to administrative detention, will be discussed with the Council of Europe experts in February, 2004 and, based on the results ofthe discussions, a draft on legislative amendments will be prepared and forwarded to CoE in April, 2004 for expertise.

During the elaboration of the Bill the imperfections concerning the administrative detention are taken into consideration in line with the international standards.

Ratification of the legal instruments of the Council of Europe

On 25 December 2003 Armenia ratified the European Social Charter, thus finalizing the implementation of its commitments in this field.

European Convention for the Protection of Human Rights and Fundamental Freedoms

The Registry of European Court of Human Rights and the Council of Europe Secretariat were not informed of the establishment of the Government Agent's Office in Armenia. The Secretariat was informed, in the context of a Multilateral Conference of Government Agents to be held on 8-9 December 2003 in The Hague, that Armenia will be represented by Mr Gevork Kostanyan, Deputy to the Head of Staff at the Ministry of Justice of Armenia.

The Group welcomes steps taken by Armenia towards the establishment of the Government Agent's Office and invites the Armenian authorities to provide the Secretariat with the text of the regulation establishing the Government Agent's Office.

The Group encourages the Government Agent to take advantage of the assistance programme of activities offered by the Human Rights Cooperation and Awareness Division at the DG II.

The Government of the Republic of Armenia has adopted the decision on the "Representative of the Government of the Republic of Armenia in the European Court GT-SUIVI.AG0(2003)10 12 Analysis -Armenia Theme Ill

of Human Rights." According to this decision, the regulations for the plenipotentiary representative has been adopted (attached).

With the presentation of the Minister of Justice, the Prime-Minister of Armenia will appoint the Representative of the Government of the RA in the European Court of Human Rights. The appointment is foreseen during January, 2004.

At the same time the Armenian side would like to ask the CoE to provide with the assistance programme of activities proposed by the Division of Cooperation on Human Rights in the Directorate General of CoE. The request for this program has been made previously, but there is no reply from CoE yet.

Death Penaltv and ratification of Protocol N"6 to the ECHR

On 29 September 2003 Armenia concluded the ratification procedure with respect of the Protocol N"6 to the ECHR by depositing the instruments of ratification with the Secretary General.

The Group expresses its deep satisfaction following the ratification, on 9 September 2003, of Protocol6 to the ECHR, abolishing de jure the death penalty in Armenia. The Group congratulates Armenia on this move, which is an important milestone in bringing the country closer to the objective of honouring its commitments undertaken at the time of accession to the Council of Europe.

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

The Group urges the Armenian authorities to fully implement the recommendations of the Committee for the Prevention of Torture (CPT) and to authorise the publication of the CPT Report on the October 2002 visit within the shortest possible time.

The midterm reply of the Armenian authorities on the recommendations of CPT was presented to the CoE on November 13,2003. The final replies will be sent by May, 2004. After forwarding the final replies the Armenian authorities will refer to the issue of publication of the report of CPT and the replies of Armenian authorities.

Convention on Launderina. Search. Seizure and Confiscation of Proceeds from Crime

The Group welcomes the ratification, by the Armenian authorities of the Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime, on 24 November 2004. 13 GT-SU IVI.AG0(2003) 10 Analysis- Armenia Theme IV

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

Judicial reform

The Group takes note of the Secretariat's initiative to hold an expert meeting in Yerevan on 26-27 November 2003 on the law on the judicial system, the law on the Council of Justice and the law on the status of judges. The meeting could address the expert's concerns expressed in their opinion forwarded to the Armenian authorities in April 2003. The discussions will focus on matters related to the judges' independence and to legal possibilities to reinforce this independence in the current constitutional framework.

The Group looks forward to reading the conclusions of this expert meeting and to being informed of the concrete steps taken to reinforce the judges' independence in Armenia, accordingly.

Please find attached the document adopted by the participants of the experts' meeting that took place on 26-27 November, 2003 in Yerevan.

Lawyers

The Group takes note of the developments related to a new law on lawyers and reiterates its recommendation to have this law finalised in close cooperation with the Council of Europe experts.

The Group wishes to be informed of the timing envisaged for the adoption of this law.

On the elaboration of a code of ethics for lawyers, the Group confirms the Council of Europe's availability to assist the Bar association in this endeavour.

The draft law of the RA on "Advocacy and lawyer activity" was elaborated by the initiative of the Ministry of Justice and was discussed in the framework of a joint program of CoE, the European Commission and the Ministry of Justice on March 19-21, 2003 in Yerevan. The discussion took place at the experts' meeting on the Revision of the legal assistance and the regulation of the profession of lawyer in Armenia arranged cooperation with the International Federation of Human Rights and the Embassy of France in Armenia.

As a result of the meeting and according to the obtained consent, the modified version of the mentioned document was translated into English with the assistance of the American Association of Lawyers and was sent to the CoE expertise.

Based on the comments of the CoE experts, the modified draft will be submitted for consideration to the Ministries concerned.

The draft law of the RA on "Advocacy and lawyer activity" will be submitted for the consideration to the RA National Assembly in the first quarter of 2004.

Prison system GT-SUIVI.AG0(2003)10 14 Analysis -Armenia Theme IV

In the framework of the action plan on prison reform, as adopted by the joint steering Group in February 2003, the Council of Europe assistance activities have focused on matters related to health care in prison. Council of Europe experts have recently (28 October 2003) given their commentaries on two regulations 1 of the Ministry of Justice and a seminar on health care in prison, combined with a visit to health care institutions in Armenia, took place on 17-20 November 2003. In addition to these two regulations, Council of Europe experts have reviewed a more comprehensive health-in-prison instrument called "Manual on healthcare services for inmates in correctional institutions and pre-trail detention facilities of the Ministry of Justice of the Republic of Armenia". Moreover, during their visit early this week, the health-in-prison experts had the chance to find out that many of the recommendations contained in their report of May 2003 evaluating the prison-health services in Armenia had been implemented (this was a report on a fact-finding visit of the same time).

The Group Is satisfied with the legal cooperation in the prison system field in Armenia and encourages the Armenian authorities to pursue this cooperation.

Particular consideration should however be given to the concerns and questions raised under the Chapter Ill I criminal reforms, related to the amendments to the criminal code which may 2 exclude the possibility of granting conditional release for life imprisonment sentences •

(See also Chapter Ill (p.7) referring to the publication of the CPT report).

1 _ th~ R.esol~tion on t~e investigation and registration of accidents at the work place with inmates of penal enforcement ~nst~tut~ons m Arm~n1a and the Instruction on conditions of detention and compulsory nutrition of inmates of penal enforcement mst1tut1ons who reJeCt food

2 On 29-30 April 2003 a seminar was organised on this topic, which will be followed by a study-visit to Scotland on 8-12 December 2003. 15 GT -SU IVI.AG0(2003) 10 Analysis- Armenia ThemeV

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

Draft Law on the mass media

The draft Law on the mass media was submitted to the Council of Europe for expertise at the end of . October 2003. The expertise was sent to the Armenian authorities on 6 November 2003. There are still some problems with the draft Law, in particular as regards the unclear definition of the media, the ban on foreign media activity except for commercial purposes, the stnct obhgat1on to venfy 1nformat1on before publication and the fact of not allowing a defence for innocent distribution. The Armeman authorities should be asked to send the draft Law as adopted in 2"• reading to the Council of Europe in order to ascertain whether or not all the experts' comments have been taken on board.

The law on "Mass Media" is already adopted (attached). The remarks and comments of the CoE experts group (November 2003) concerning the mentioned draft law are all taken into consideration and are included in the final version of the text.

Law on Radio and Television

Draft amendments to the Law on Radio and Television are presently under discussion in Parliament. According to information from the Chairperson of the Standing Committee on Science, Education, Culture and Youth, these amendments will be adopted in a second reading on 12 December 2003. The GT-SUIVI.AGO expresses its surprise and deep regret that the draft amendments were not sent to the Council of Europe for expertise in time before the second reading as promised by the Armenian authorities. The Group recalls that the draft amendments should seek to increase the independence of the National Commission on Radio and Television and the Council of Public TV and Radio through a more transparent appointments' system and introduce an obligation for the former body to motivate its decisions. The Group expresses its firm expectation that the serious deficiencies of the current broadcasting regime regarding these two questions will be remedied. The Group will be placing particular emphasis on this matter during its forthcoming visit.

The law on Mass Media and amendments to the Law on Radio and television adopted in December 2003 will be forwarded to the Council of Europe expertise in January, 2004. Since the laws were drafted in full conformity with the comments of the CoE experts, as well as taking into account the PACE Monitoring Committee's recommendation regarding the passage of the laws up to end of January following their first reading, there was simply no time left for expertise after the second reading. We are hopeful that all recommendations made by experts are taken into consideration and their preliminary assessments on the conformity with European standards will be confirmed.

Mr. Poirel's recommendation on the revision of the principle of composition of the National Commission on Radio and Television is included in the amendments to the Law on Radio and Television Law.

On December 3, 2003, the National Assembly of Armenia adopted the Law on Amendments to the Law on Radio and Television. The article 13 of the Law foresees to fill up vacancies in the National Commission on Radio and TV and the Council of Public TV and Radio through a tender. The President of Armenia announces the tender. There is no restriction on the participation, except for the cases mentioned in the article 41 of the Law on the Radio and Television. That is - the leaders of the political parties, the heads of the national and private TV and radio companies, persons involved with GT-SUIVI.AG0(2003)10 16 Analysis -Armenia ThemeV TV and radio companies by contract, including the employees of public and private TV and radio companies, cannot be members of the commission.

Above mentioned amendment to the Law on Radio and Television was made in fulfilment of the requirement of the Council of Europe on the appointment of members for the National Commission on Radio and TV and the Council of Public TV and Radio, which was introduced to the National Assembly of Armenia in October 2003. The necessity of de-politization, increase of independence of the National Commission on Radio and Television and the Council of Public TV and Radio through a new system of appointments are underlined in the mentioned requirement.

Another way of the appointment of members for the NCRT and the Council of Public TV and Radio was offered by a group of MPs of the National Assembly of Armenia. (Sh. Kocharian, S. Zakarian, H. Khachatrian, T. Manaserian). According to the submitted proposal, the members of the Commission and the Council must be appointed by those political parties and unions of political parties, who received at least 5% of the sum of the votes given to the political parties and in the parliamentary elections by proportional system. This approach to the formation of the NCRT and the Council of Public TV and Radio does not only provide the independence of the mentioned bodies, but also puts them in a direct dependence from the politics. "Political" licensing and monitoring does not coincide with the principles of democracy and opposes to the obligations undertaken by Armenia through international agreements.

Licences to private TV stations

The answer does not provide any information on the tenders organised by the National Commission on Radio and Television. The Group recalls that it has repeatedly urged the Armenian authorities to take measures to ensure a plurality of radio and TV programmes at the local and national levels, in particular in connection with the closure of A 1+ TV, which enjoyed respect for balanced and innovative news coverage. It furthermore expresses its concern about the fact that the repeated applications of this particular company in tenders organised by the NCRT have always been rejected with little or no justification. It seems that the last such tender for many years to come is being organised now with the NCRT planning to announce results before the end of 2003. In view of this, the Group calls on the Armenian authorities to take urgently all necessary steps to remedy the unsatisfactory situation resulting from the lack of a variety of independent sources of information in the electronic media.

According to recent amendments in the Law, made to insure the impartiality and faire motivation of the decisions of the National Commission on Radio and TV, the decision on providing a broadcasting frequency and declaring invalid the given license must be approved by the two third of the total number of the members of the Commission, instead of the simple majority of the votes as was the case before.

In selecting an owner of the license the Commission is guided by the Article 50 of the Law on Radio and Television, according to which the availability of own programs, the availability of locally produced programs, technical and financial abilities of the applicant, the professionalism of the staff is taken into consideration. According to the changes taken place in the law, the financial abilities are evaluated based on the principle whether they are satisfying or not for the projects presented to the competitions. 17 GT-SU IVI.AG0(2003) 10 Analysis - Armenia ThemeV

About the Plurality of the Radio and Television Programmes:

The perception of the AGO group, that the plurality of the Radio and Television programs in Armenia is not provided by the authorities due to the disposition of "AI+" TV company of "Meltex" LTD from broadcasting, and because of which the Armenian society was denied "balanced and innovative news", makes to conclude, that the GT SUIVI- AGO means the thematic variety of the subjects of the TV and Radio programs.

According to the Constitution of Armenia, the Armenian authorities, including the National Commission on Radio and Television as a regulating body of the television and the radio, do not have any obligation or right to interfere with the contents of the radio and TV programs, so they cannot form the variety of the thematic plot.

In Armenia there are 42 licensed television companies and 11 radio companies, each of which bas its peculiar policy and has formed its own audience.

According to its competence, provided by the law, the National Commission on Radio and Television, when setting the conditions of the competition, can foresee certain direction for a TV-radio programme- musical, news, programs for youth and children etc. The TV-channel "Homeland" bas chosen the domain of entertaining children and youth, the "CINEMAX"- news, the TV-channel "Century 21"- music, etc. The radio station "Van" often broadcasts programmes about national minorities. The TV­ programs CNN and EuroNews are rebroadcasted in Armenia; there is an Armenian edition of the TV-program "Mir"; these provide the variety of information in the media.

While announcing tenders for broadcasting license in the regions, the Commission also offers conditions on the volume of the news, local news' programs, scientific-educational, cultural, local-cultural, social, daily sports' and other programs.

The problems referring to the contents of the TV -programs are regulated by the market and the interference oftbe authorities is forbidden.

About TV-station "AI+":

Reverting to the problem of "Al+", we would like to mention, that the "Al+" TV­ Company of "Meltex" LTD Co. has not been closed, but the date of its license activity has expired. The applications of "AI+" for participating in the announced tenders were not denied, it just bas not won the tenders. After each tender the TV-channel "Al +" has taken the case to the court, but it bas never challenged the Commission on the outcomes of the voting. In the applications to the court, some procedural issues of the tenders were challenged.

During the presentation of the monitoring results for Armenia by the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, it was announced that the tenders were held within the framework of the Law, but the reasons why Al+ was not announced a winner were not definitely motivated. GT-SUIVIAG0(2003)10 18 Analysis -Armenia ThemeV

About the Independence of Electronic Media:

According to the Constitution of the Republic of Armenia, the electronic media can be public and private. Independence of private media is guaranteed by law. The independence of private electronic media depends only on the will and financial resources of its founder.

Defamation provisions in the Armenian Criminal Code

Contrary to what is stated in the reply, the Council of Europe experts had insisted in their October 2002 opinion that the provisions on libel and insult in the draft Criminal Code were in need of improvement. Three main aspects were identified where the text should have been improved: The need to allow a good faith excuse, proportionality of sanctions and the principle that there should be no more protection for public officials than for private individuals.

The Group once again urges the Armenian authorities to reconsider these provisions in the Criminal Code and offer the help of the Council of Europe with finding alternative formulations which would correspond to European standards, in particular the case law of the European Court of Human Rights.

Despite the fact that during the expertise of the Criminal Code the Council of Europe experts did not have recommendations and remarks on these provisions there is a preliminary agreement on discussion of the issue with the experts and drafting amendments up to the end of 2004. There is a similar recommendation in the draft resolution to be submitted at the PACE January part-session.

Freedom of Religion

The draft law on alternative service

On 8 October 2003 the law on alternative service passed the first reading in the National Assembly. The text adopted was not the text which was submitted to the Council of Europe Secretariat for expertise, but the two texts were similar in as much as they both contained all the provisions contrary to European standards.

On 28-29 October 2003 the Council of Europe Secretariat and the OSCE Office in Yerevan organized in co-operation with the National Assembly of the Republic of Armenia a workshop on the draft law on alternative service. Mr Friedheim Schneider, delegate of the European Bureau for Conscientious Objection to the Council of Europe, author of the written expertise on behalf of the Council of Europe and the OSCE expert, Mr Artur Visotin, Director of the Alternative Service Administration of the Republic of Moldova discussed in great detail with the Armenian drafters of the law and other interested parties all the problem areas and proposed solutions which the Armenian authorities could consider.

The draft law as it was passed the first reading shows several major shortcomings with respect of European standards:

• the right to apply for alternative service is only open to persons belonging to registered religious organisations (no recognition of right to apply for non-religion based pacifist motives); • punitive duration of the alternative service (42 months as compared with 24 for military service); • alternative service can only be performed in the framework of the armed forces (no truly civilian alternative); • the right to object is restricted to the moment of conscription; 19 GT-SUIVI.AG0(2003)10 Analysis - Armenia ThemeV

• post-service discrimination with respect of access to public service (prohibition of holding posts in judicial and law enforcement bodies; • the examination of the application for alternative service - itself conducted by local military conscription commissions - does not entail suspension of conscription into military service.

The second reading of the law on alternative service took place two days ago. The Group cannot comment on the adopted text, as it has not yet seen it.

The Group recommends that the text of the draft taw as approved in the second reading be forwarded to it in order to carry out an expertise before the third reading.

The Law on Alternative Service was fully passed last December, which took into consideration the recommendations of the CE experts on the dates of the service, the limitation of the alternative service only for members of religious organizations, etc. The law will be sent for expertise in January 2004.

The correlation between the Draft Law of the Republic of Armenia "On Alternative Service" and the remarks of OSCE is as follows:

Concerning the 1' 1 remark:

According to the 3'd Article of the Draft Law on Alternative Service the right to apply for alternative service is open to persons whose religious belief and views are against of doing military service in military units, as well as carrying, keeping, storage and usage of weapons.

Concerning the 2"d remark:

According to the 2"d Article of the Draft Law, the alternative service is implemented in two ways - alternative military service for 36 months, and alternative labour service for 42 months.

Concerning the 3'd remark:

The alternative civil service exists in the Draft Law, as the alternative labour service supposes service in civil facilities.

1 Concerning the 4 h remark:

According to the 3'd Article of the Draft Law, the citizen must apply for alternative service until the 1' 1 of March or 1' 1 of September preceding the current conscription. After conscription, the serviceman cannot refuse the military service, because he gives a military oath and cannot be a member of any political party, religious or trade union according to the Law on Military Service.

1 Concerning the 5 h remark:

According to the 23'd Article of the Draft Law the limitation on holding some positions for citizens who has passed alternative military service concerns only those positions GT-SUIVIAG0(2003)10 20 Analysis -Armenia ThemeV which functional responsibilities are related to carrying, keeping, storage and usage of weapons.

1 Concerning the 6 h remark:

According to the 1O'h Article of the Draft Law, the application for passing alternative service can be rejected only in the following cases: a. when the applying citizen is not reporting to the meeting of the Call-up Committee by unreasonable excuse, b. when there is a false information in application. Nevertheless, the citizen can appeal the decision on rejection in Republican Call-up Committee, and afterwards in the Court.

Order No 551-A

The Group notes that in their reply the Azerbaijan authorities indicate that Ms Zemphira Voskanian's dismissal was due to lack of qualifications rather than in the context of Order No. 551-A. The Group has been informed that, according to this order, police department employees who are members of any religion other than the Armenian Apostolic Church must be identified and those who do not renounce their faith are subject to being fired. The Group would like to have more information regarding this order and proposes that it should undergo an expertise.

The Group recommends that an expertise of Order 551A be carried out in the context of the examination of the draft law on the Police.

Order #551A of the Minister of Interior of the RA, dated December 3, 2002, should regulate public and state activities of servicemen in the system of the Ministry oflnterior of the RA. The point 3 of the Article 25 of the Constitution declares that the constitutional right to form unions can be restricted for persons working in military or law enforcement bodies. Restriction arising from that constitutional norm is foreseen in the Law on Service in Police adopted on July 3, 2003. According to the Article 39 of the Law, servicemen of the Police of RA have no right to be a member of political, public (except of scientific, cultural, sport, hunting, veteran associations or those having similar objectives) associations, including religious organizations and trade unions. Actually, the Order #551A of the Minister of Interior of Armenia was adopted for implementation of the point 7 of the first part of Article 39 of the Law on Service in Police. The objective of the Order is to exclude the possibility of forming of and membership in religious organizations within the framework of the Police by police servicemen and to organize respective educational and explanatory trainings (in other words, this order does not affect freedom of conscience and religion).

Armenian authorities would like also to note that this order is not a normative act but an single act for internal circulation, which addresses certain instructions to the leaders of Police system. No person has been dismissed or restricted in his/her rights by the application ofthe Order.

As to the case of Zemfira Voskanyan, we would like to mention that she was dismissed as the Head of Financial Section of Stepanavan Division of Lori Marz Department of the Police by the Order #lav-A of the Head of Police of Lory Marz, dated 20.02.2003, 21 GT-SUIVI.AG0(2003)10 Analysis- Armenia ThemeV according to the point 2 of the Article 36 of Labour Code of the RA (discrepancy of the serviceman with the position) but not by the Order #551A.

At the same time we would like to inform that Zemfira Voskanyan was reinstated in the same position by the Order #29A of the Head of Police of Lory Marz, dated 22.04.2003, and now performs her duties. GT-SUIVI AG0(2002)10 22 Analysis - Armenia

VII. Nagorno-Karabakh

Because of the elections in Armenia and Azerbaijan, it has not been possible to make any progress with negotiations over the last year. There is nevertheless an urgent need for a settlement of the Nagorno­ Karabakh conflict: that is a precondition for the development of democracy, stability and prosperity in the South Caucasus.

As elections are now over in both countries, the Group urges the parties actively to resume negotiations in order to reach a fair and lasting solution with the help of the Co-Chairs of the Minsk Group, who are to travel to the region after the OSCE Ministerial Summit in Maastricht.

The Group also invites Presidents Aliev and Kocharian to resume direct talks as soon as possible. It would remind them of the undertaking given by Armenia and Azerbaijan, when they joined the Council of Europe, to make every effort to find a peaceful solution to the Nagorno-Karabakh conflict and urges them to show courage and political vision. It is essential that the two Presidents resume negotiations in a spirit of openness and with a willingness to reach a compromise.

The Presidents of Armenia and Azerbaijan met in December 2003 in Geneva in the margins of the World Summit on Information Technologies. Hopefully a new meeting will take place soon, again in the framework of an upcoming international event.

The Republic of Armenia stands ready to resume the negotiations in full scale.