COMMENTS On REPORT



"Implementation
of Resolutions 1361 (2004) and 1374 (2004) on the honoring of obligations and
commitments by Armenia" (Doc. 10286 20 September 2004) by the Committee
on the Honoring of Obligations and Commitments by Member States of the Council
of Europe (Monitoring Committee)

Co-Rapporteurs: Mr. Jerzy Jaskiernia, Poland, Socialist Group, and Mr. Rene
Andrte, France, Group of the European People's Party

Having read the document one can state that the corapporteurs have not made
a detailed examination of the situation in Armenia or were somewhat careless
or, else, have taken for granted everything that the representative of the country
administration said neglecting the viewpoints of representatives of the NGO
community. Thus, the lack of information is manifest not only in the points
that the rapporteurs highlighted as positive but also in those that they present
as negative.

1. Item 3.i of the resolution notes:

i. peaceful demonstrations continue to be authorized and that the authorities
have refrained from any action which would legally, or in practice, lead to
unjustified restrictions to the freedom of assembly guaranteed by the European
Convention on Human Rights;

- In April-June the applications of the opposition about the conductance of
rallies and demonstrations were repeatedly rejected by the municipality with
different motivations. Five out of six applications for rallies by opposition
were rejected. The grounds for the refusal are specified, in particular, by
the reply 01/03-3331h of the Yerevan Municipality to be:

"Taking into account the address of the senior citizens of the Center community
of Yerevan to the Yerevan Mayor at the session of April 4, 2004 about abstaining
as much as possible from authorizing rallies, demonstrations and assemblies,
we find the conductance of a rally at 19.00 on May 21 this year to be inappropriate.
"

Or:

"By the municipality resolution 05/1 of 01.06.2004 "On Prohibiting a Mass Public
Event", "Reviewing the applications of citizens Koryun, Arakelian, Albert Bazeyan,
Victor Dallakian and others of 31.05.2004 and taking into account that criminal
proceedings have been instituted by the RA General Prosecutor's Office with
regard to the past rallies, also proceeding from sub item 3 of clause 1 of Article
13 of the RA Law "On Holding assemblies, rallies, demonstrations" as well as
the resolution 856A of the Yerevan Mayor fating 17.05.2004 - to prohibit the
conductance of a rally in the vicinity of Matenadaran at 18.00, June 4 this
year, as requested by citizens Koryun, Arakelian, Albert Bazeyan, Victor Dallakian
and others".

Only the rally of June 16, 2004 was authorized (during the period of June 11-15
Jerzi Jaskernia was on visit in Yerevan).

The situation did not improve in terms of legislation either.

The PACE Resolution 1374 gave a very restrictive description of the Law "On
Holding assemblies, rallies, demonstrations" passed by the RA National Assembly
on April 28 and enforced on May 22.

In essence, the definition made by item 3.I repeats the segment from the report
enclosed to the address of the head of PACE delegation to the PACE President
on June 16, 2004.

2. Clause 3.ii of the report says:

ii. the Constitution guarantees freedom of movement and laws provide
for maintenance of public order;

- Instead of discussing the factual insurance of the freedom of movement in
the report, it only makes a reference to the RA Constitution, while on the days
of rallies in Yerevan the police stopped and sent back all the buses and microbuses
that incited even the slightest suspicion of transporting people to the rallies.
And the drivers of some buses on regular routes to Yerevan from a number of
regions were simply prohibited from going on route. The highways to Yerevan
were usually closed on rally days, so that the residents of the regions are
unable to participate in them. People were made to get off the buses and go
back home; many of them were taken to the police by force. On those days those
who commute to work and study in Yerevan found themselves in a difficult situation.


All this was repeatedly reported by the Armenian press, the facts are also mentioned
in the reports and statements by Armenian and international human rights organizations.

3. Item 3.iii of the report says:

iii. the investigations on the incidents and human rights abuses reported
during the recent events, including assaults on journalists and human rights
activists, were led and information was provided to the Assembly on their findings
and of any legal action taken against persons responsible;

- It appears that the mere fact of investigation being conducted is sufficient
for the rapporteurs to say that the obligations have been met. But what about
the consequences? After the investigations many cases were dismissed and no
criminal proceedings were instituted on the police violence against journalists
on the night of April12 - morning of April 13. These are facts that make one
question the impartiality of the corapporteurs.

The reports only noted of the punishment stipulated for those guilty of violence
against journalists during the rally of April 5, 2004 (the punishment left the
journalistic community and public discontent). The report does not mention the
violence committed against the journalists during the events of April 12-13.
Particularly serious injuries were inflicted on the correspondents of "Haikakan
Zhamanak" newspaper Haik Georgian and Avetis Babajanian, the cameraman of the
ORT TV company Levon Grigorian, the correspondent of "Chorrord Ishkhanutiun"
newspaper Mher Ghalechian.

The report does not specify the violence against the NA deputy Victor Dallakian
and politician Ashot Manucharian either.

4. Item 3.iv of the report says:

iv. the persons detained for their participation in the demonstrations
were released and an end to the practice of administrative detention is expected
as the Administrative Code is in the process of being amended;

- It has not been once that administrative justice was applied to suppress the
opposition and this is the reason why the CoE on September 26, 2002 made a statement
condemning the use of administrative responsibility for political reasons, passing
the PACE resolution 1304 /2002/1 at the 31st session of the Parliamentary Assembly.
The resolution in particular calls on the Armenian authorities to remain true
to the commitments assumed and to reconsider the Administrative Penal Code without
delay, abolishing the norms allowing such administrative arrest. The authorities
were warned against abusing these norms before they are reconsidered, not to
use the administrative punishment against the participants and organizers of
rallies and demonstrations.

Arrests are also incompatible with the commitments Armenia holds to OSCE. According
to Copenhagen document, paragraph 7.7, both the administrative measures and
their threats must not obstruct the free presentation of viewpoints by candidates.


However, administrative arrests were imposed both during the presidential elections
of 2003 and during the rallies of April-June, 2004.

Thus, the refusal from the use of administrative arrest was nothing but a promise
on behalf of Armenian authorities.

5. Item 3 of the document does not mention the need to create conditions for
the normal activities of the media (in particular, with regard to granting broadcast
licenses, namely with regard to allocating a channel to "A1+").

This is issue is raised in items 9-11 of the report.

9. The Assembly notes that the last amendments to the Law on Radio
and Television request that the National Broadcasting Commission should add
arguments when awarding broadcasting licenses, thus preventing the adoption
of arbitrary decisions.

Item 11.iii reads:

iii. the developments in the media sector in Armenia: it expects that,
on the basis of the recent amendments to the Law on radio and television, the
composition of the National Broadcasting Commission will be renewed as soon
as possible and that fair conditions for awarding broadcasting licenses to televisions,
in particular to A1+ television channel, will be created;

Firstly, in broadcast licensing, the additional arguments do not exclude
the arbitrary decisions. Other methods of open and public discussion are necessary
here. It is particularly important to involve representatives of public organizations
and experts, which is allowed by Article 26 of the RA Law "The Statutes of the
National Commission on Television and radio". In January 2004 a number of non-governmental
organizations addressed the Chairman of the National Commission, asking to involve
their representatives as experts in the last broadcast licensing competition.
The suggestion was turned down.

Subsequently, the lack of information of the corapporteurs is manifest in the
narration of the point above (11.iii). In reality, the amendments to the Law
"On Television and Radio" in no way stipulate the change in the composition
of the Commission, they only refer to the competitive appointment of the new
members should vacancies arise (Amendment to Article 45, RA Law "On Television
and Radio" adopted on December 29, 2003, enforced on January 21, 2004).

Finally, "the composition of the National Broadcasting Commission will
be renewed as soon as possible and that fair conditions for awarding broadcasting
licenses to televisions, in particular to A1+ television channel, will be created",
that is, according to the corapporteurs, up to now the competition conditions
were unfair, in that case, why has not been this specified in the report? The
stress here should have been not on the change of Commission members, but the
procedure for forming it, which does not ensure the independence of the body
and makes it a tool in the hand of the executive.

Even in the cases when the corapporteurs try to record the negative aspects,
they appear to be uninformed. Thus, item 30 of section on freedom of expression
and the media says:

30. The situation regarding the media still gives cause for concern.
Newspapers are regularly found guilty in court and ordered to pay heavy fines
for publishing defamatory articles about prominent figures in or close to the
government.

Yerevan Press Club and the Committee to Protect Freedom of Expression regularly
record any occurrence against the media, including litigations, and during the
past year, fortunately, no such cases have been noted.

Item 31 runs:

Kentron TV, which had taken over the license from A1+ two years previously,
has also stopped broadcasting since May 2004 and has been replaced by Aravot
TV

This is a very vivid example of lack of information. Kentron TV Company has
not stopped its activities, only its air name was changed.

The corrapporteurs also note:

In January 2004, the commission granted a license to Yerkir, managed
by the Armenian Diaspora.

This, in our opinion is an irresponsible statement. Actually, there is no "Yerkir:
TV company in Armenia, its name is "Yerkir Media".

Finally, the following phrasing can be found in the same item:

Moreover, the corapporteur agrees with the chairman of the Committee
on the Media that television channels in minority languages should be able to
compete for the award of licensees.

First of all, in Armenia there are no TV channels in minority languages, and
secondly – how can the same frequency be competed for by an Armenian-language
broadcaster and say, Kurdish-language broadcaster (even if there is one)?

6. Numerous mistakes and mispresentations also exist in other points of the
draft report as well as the Explanatory Memorandum of the Corapporteurs.

a) 7. It notes that the constitutional revision needed to ensure that
certain commitments are fully honored is making good progress. It asks that
the authorities should rapidly prepare draft amendments to the Constitution,
present them to the Council of Europe in 2004 for expert appraisal and organize
a referendum as soon as possible and in any event by June 2005 at the latest.
This revision will make it possible for the Armenian National Assembly to confirm
the appointment of the human rights ombudsman.

8. The Assembly takes note of the timetable for effective implementation of
the basic reforms concerning the judicial system and the independence of the
judiciary and of the intention to adopt the law on the status of judges, the
law on the judicial council and the law on the judiciary before the end of 2004.

With regard to other commitments the Assembly notes the steps taken
to:

vi. adopt a law on the status of Yerevan, a law on territorial autonomy, a law
on local government staff and a law on local self-government;

17. According to the authorities, the revision of the Constitution is in progress.
The proposed amendments to the Constitution were published in August 2004. At
the time of writing of this report, the Venice Commission was waiting for these
proposals to be forwarded to it, as soon as they had been translated. The revision
is to be completed by the end of 2004, with a view to the holding of a referendum
in 2005. It is essential with regard to new laws which have been passed but
which depend on it for their implementation. This applies, for example, to the
law on the Ombudsman: the Ombudsman who has been appointed by the President
of the Republic, Ms Larisa Alaverdyan, has to have her appointment confirmed
by three-fifths of the members of parliament, but this cannot be done until
the Constitution has been revised. The other three laws concerned are those
relating to the media, the independence of judges and the status of Yerevan.

Although the corapporteurs were unfamiliar with the draft amendments
to the Constitution, however, they note the progress with regard to the constitutional
reform.

The package of constitutional amendments as presented does not solve the issue
of division of authority, particularly, does not ensure the independence of
the judicial. In the amendments proposed the Justice Council is to be headed
by the President of Armenia. Also, the status of Yerevan remains unchanged –
the mayor is appointed by the President.

In fact, after the new Constitution is adopted, it is not the appointment of
the ombudsman that should be confirmed, but a new Human Rights Defender should
be appointed by new procedure. This means that the corapporteurs are either
unfamiliar with the law, or else it has been translated incorrectly for them.

b) 26. The co-rapporteur wishes to point out that Armenia is obliged
to eradicate torture on its territory under the 1949 Geneva Conventions, the
Convention against Torture, the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights and the regional instruments to which
it is party, namely the ECHR and the CPT.

27. The CPT published its first report on Armenia on 28 July 2004, following
a visit to the country in October 2002. The CPT found that persons detained
by the police in Armenia run a significant risk of being ill-treated, and called
for urgent steps to be taken to improve in particular the conditions of detention
of persons serving life sentences at Nubarashen Prison. In response to this
report, the authorities stated that they were endeavoring to improve police
training and conditions of detention at Nubarashen. The co-rapporteur hopes
that these measures will be implemented quickly.

28. For his part, the rapporteur visited the Vanadzor detention and isolation
centre in the province, whose inmates include both persons in pre-trial detention
and sentenced persons. Vanadzor is in a disastrously run-down state. The conditions
of detention there are appalling, as the building is very old and has not been
renovated. The prison authorities have found a new site for the detention and
isolation centre in the same town but the construction cannot begin until funds
have been obtained. Fortunately, Vanadzor is not overcrowded. Some of its inmates
are young deserters from the army. The prison administration denied allegations,
which had come to the rapporteur's attention, that prisoners had gone on hunger
strike. Torture and ill-treatment inflicted on persons in custody at Vanadzor,
which led to the death of Lieutenant-Colonel Artush Ghazamyan, resulted in charges
being brought against several officers and their being sentenced to terms of
imprisonment ranging from one to ten years. The co-rapporteur notes with satisfaction
that it was due to the initiative of the Presidential Commission of Human Rights
that this procedure had been commenced. Both the doctors of the prison who had
denied torture being used were also condemned.

The corapportuers noted the case of Artyusha Ghazarian of about four years
ago, however, they did not quote other cases of torture.

This section of the report does not tell about the ill-treatement of Grisha
Virabian at the police station of Artashat on April 23, 2004, as a result of
which he is now handicapped, as well as the violence against women in police
stations of Erebuni, Arabkir and Center communities on April 13-14 Ani Khachatrian,
Marine Hakobian, Varduhi Shahbazian, Gayane Ashughian, Naira Aghababian, Gohar
Kurazian). These women also met with the EU CPT representatives.

C) 34. It seems that the police did not use excessive force. The demonstrators
had received adequate warnings and the police forces present acted in accordance
with the law, using legal means of dispersal (that is water cannons, tear gas,
and truncheons). Following the demonstrations, a number of individuals (115
according to the authorities, more according to members of the opposition, NGOs
and even the OSCE) were arrested, but most of them have since been released,
or were released after being ordered to pay a fine. At the time of the rapporteur's
visit, 12 persons were still being held, and criminal proceedings had been brought
against two of them.

36. The opposition alleges that the prisoners are political prisoners,
and the government asserts the contrary. For his part, the rapporteur, who has
met both sides, believes that the individuals in question were not arrested
on the sole ground that they were taking part in a demonstration, but because,
according to reliable information, they had violated public order under the
terms of existing legislation. It should be noted that the criminal charges
against two of them were dropped in May 2004 and that they were released. In
addition, MM Suren Surenyants (political secretary of the Republican Party)
and Vagharshak Harutyunyan (one of the leaders of this party) were released
in June 2004. MM Ashot Zaqaryan and Artak Gabrielyan received a one-year suspended
prison sentence.

37. The law enforcement authorities recognised that the police had reacted badly
to a demonstrator who had thrown an empty plastic bottle at one of them[20].
Except in this one instance, the police reportedly showed restraint, despite
the fact that 27 of them were injured and five of them were taken to hospital.
It was also officially acknowledged that the search of the apartment of MP Artashes
Geghamyan had been unnecessary; it had been carried out because the police thought
they would find weapons there, Mr. Geghamyan having made allusions to that effect.
Mr. Shavarsh Kocharyan was the only member of the Assembly taken into custody,
but he was released a few hours later.

[19] The principal road in Yerevan city having been blocked by demonstrators,
the police forces were obliged to disperse the demonstration after several orders
of evacuation.

On the night of April 12, morning of April 13, 2004, turning off the
street illumination, the police surrounded the peaceful demonstrators and committed
violence against them by watering machines, batons, electroshock, explosive
devises, as a result of which numerous people got injuries of varying degrees.
This was followed by a police intrusion into the offices of opposition parties
(Republic Party, People's Party of Armenia, National Unity Party", where the
staff, including women were arrested. And this report is the first one to tell
us about the injured policemen.

As to the issue of political prisoners raised in the report, it gain, does not
mention the criminal proceedings versus the "Justice" alliance, the political
nature of which is proved by the fact that it was dismissed a month ago on the
grounds of the change in situation. It is in this context that the arrests of
the politicians are considered.

The report does not mention the attempts to search the flats of Stepan Demirchian
and Vazgen Manukian.