Avetik Ishkhanyan

Head of Helsinki Committee of Armenia (HCA)

AIISA partner expert

Before any assessment on conditions for human rights (HR) in Armenia, its political system should be analyzed first as a decisive pattern for the current state in the field.

Talking to Armenia’s radical opposition and civil activists, the latter will assuredly state that dictatorship has been rooted in Armenia. It’s difficult to agree with such an assessment, as some freedoms, particularly, freedom of peaceful assembly and speech with some restrictions and freedom of unions are exercised in Armenia.

Does it follow that Armenia is a democratic or democratizing country, where human rights are protected, as it’s claimed by authorities? This assessment also doesn’t pass any exam. In general, guarantying human rights protection in any country is provided by two crucial components inherent to a legal state: direct democracy and rule of law.

FORMER CONSTITUTION AND HUMAN RIGHTS DEFENCE

Armenia lacks the first component. After independence, Armenia held 5 parliamentary and 5 presidential elections, none of which met international criteria of democracy. If in the 90s elections were forged through roughest ways—violence, stuffing of ballot boxes, changing of results protocols, then more advanced and “soft” technologies have been applied during last elections, such as bribery, abuse of administrative resources, exaggerated voter lists with unknown people registered on various addresses.

As a result, regime change through elections wasn’t recorded in Armenia up to day, and there is ubiquitous distrust towards election procedures among the public.

To assess the second component—rule of law, and particularly, independent judiciary, it’s worth mentioning that although Armenia formally is a semi-presidential country, actually its president is endowed with great power.

Article 49 of former RA Constitution defines: “The president of the Republic of Armenia is head of the state. The president of the Republic upholds the Constitution and ensures regular functioning of legislative, executive and judicial powers.”

The president was not only the one to appoint the Prime Minister and all the ministers proposed by the latter, but also to make direct appointments to Defence Minister and his/her deputies, heads and deputies of the Police, National Security Service, Investigation Committee, Special Investigation Committee; attorney general to be appointed by the Parliament was his nominee, as well as from candidates for attorneys offered by the Justice Board he was appointing the ones he preferred.

Likewise system de jure confirms that Armenia lacks the principle of separation of powers, and the only hope of the public for protection of its rights can be RA president’s humane characters: utter absence of personal, family, party or other interests, as well as strong, but at the same time, kind and righteous nature.  

We are of the opinion, that bearer of these characteristics appears only in legends to satisfy dreams of its dependents. Perhaps our opponents will disagree, arguing Armenia was not lucky regarding its three presidents.

Human rights are vertical relations of the state and an individual; any infringement on a person by any official is regarded as violation of human rights. Which branch of power violates human rights as a rule? The answer is: the executive one, especially the police, procuracy, Ministries of Justice and Defence, regional and local governments and etc.

Which power should assert infringed rights?—the judicial one. In case of Armenia, all these state bodies are in the same boiler, deprived of any independence, appointed by one person, and implementing the latter’s will and commands.

Accordingly, can head of state, as constitutionally defined, punish anyone from his team for any offence or crime, or to be more exact, order to punish his subordinate and insider again, especially, taking into account, that exactly these officials, and especially law-enforcement are pillars for power?

Anyhow, in the history of already 25 years of independence not a single precedent is known; opposite examples are numerous though. Under these circumstances a situation is unfolded in Armenia, where a person is protected not by law, but by his/her official position and financial means, largely coinciding, as the majority of MPs and ministers are big businessmen. This situation has originated an atmosphere of impunity or selective justice.

Armenia’s well-known officials or their sons and relatives periodically appear in miscellaneous criminal scandals, and, as a rule, aren’t punished or their punishment bears just a formal character. Again, the reason is merging of authorities and business, as well as encroachments on direct democracy—elections, which are regularly forged. Authority in Armenia isn’t purely a political power, but a possession and business as well. Keeping that at any price or becoming its part also implies maintenance by illegal means. Rules of the game dictate this.

Thus, amid absence of power separation, human right violations in Armenia bear a systemic nature.

However, Armenia’s citizens show indifference towards human right violations in everyday life, if they don’t refer personally to them or don’t take a massive character, as a rule, matching with presidential elections and post-electoral period. In that period election frauds are accompanied with violence, freedom of peaceful assemblies, unions and speech are restricted, resulting in existence of political prisoners and even 10 victims in 2008, while people responsible for that haven’t been revealed and punished yet[1].

Coming to assessment of fundamental rights, especially those violated in Armenia, first and foremost, political rights to elect and to be elected are not exercised in Armenia completely, as mentioned above. Right to a fair trial is another challenging issue, and its indirect proves are verdicts of acquittal, comprising miserable 2%, and the courts’ wide-spread satisfactions of investigators’ motion on detention as a precautionary measure. The reports released by Armenia’s human rights defender (ombudsman) on courts, as well as by Nils Muižnieks, Council of Europe Commissioner for Human Rights[2], provide arguments for that.

We consider, the deepest issue of human rights in Armenia perhaps is the practice of violations for absolute right of refraining from degrading treatment and punishment. Evidences on regular tortures reflected in 2002-2013 reports of Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) are quite enough to prove that[3]. Despite numerous claims by human right advocates and lawyers, not a single official has been punished for tortures. Discrimination against separate religious groups and sexual minorities is a serious problem as well, which is a result of clichéd mentality of both authorities and society[4].

As a rule fundamental rights are introduced in reports on human rights, while social-economic ones are often ignored. The situation unfolded in this field is more than disastrous. The socially needy are practically deprived of elementary healthcare. Labour rights aren’t respected as well. Working relations between an employer and an employee can usually be described as slavery. Very often employees aren’t contracted, work by unscheduled mode, with no fixed hours, days off and holidays[5]. State control in this field is rather weak if not absent at all.

We are of the opinion, that the reason is the above mentioned fusion of authorities/politics and business, as a businessman is interested in gaining more profit, so it won’t control itself as an authority at the same time. If we also take into account that neither ruling nor influential opposition political parties in Armenia embrace leftist-socialist ideologies, and there are no truly independent and aggressive trade unions as well, the picture will be complete.

One shouldn’t separate human fundamental and social-economic rights. We think that protection of fundamental rights would assume the role of a locomotive to defend social rights. Particularly, independent judicial power would provide not only exercise of fundamental rights, but free economic competition as well, which in its turn would lead to economic development and improvement of social rights.

To summarize, main guarantee for human rights protection is separation of powers, i.e. availability of independent judiciary. Has the society created a demand for systemic changes, including judicial independence in the period of last 20 years? Anyhow, most of Armenia’s dominant political parties haven’t raised likewise question in their programs.

NEW CONSTITUTION AND REFERENDUM

Unexpected for the many, on the very first year of his second term of presidency—2013, RA president Serzh Sargsyan initiated the process of Constitutional amendments, establishing vocational committee, which in 2014 made public new constitutional concept, envisaging a shift to parliamentary governance system. Hence, which was an incitement to likewise initiative, if we take into account, that, as a rule, the ruling group doesn’t restrict its power willingly, but under any pressure from bottom?

It’s worth mentioning, that with his de facto unlimited competences, RA president has restrictions on time: pursuant Article 50 of former RA Constitution, “The same person may not be elected for the post of the president of the Republic for more than two consecutive terms.”

Thus, after two terms the president passes on to his “well-earned rest” losing all power levers. We think this might be the only motivation for Constitutional reforms, as under parliamentary system “term obstacle” is not envisaged, and, theoretically the same political force may rule and its leader might be a Prime Minister with no time limitations.

By the way, observation mission from the Parliamentary Assembly of the Council of Europe (PACE) made such an observation: “the core of the constitutional change - the shift from a presidential to a parliamentary system - was understood by too many citizens as being a means for the current president to remain in power after the end of his second (and what would have been final) term^[6].”  

Do Constitutional reforms guarantee Armenia’s democratic developments and separation of powers?

Pursuant Article 89 in draft amendments, formation of a stable parliamentary majority after elections is mandatory. Moreover, if it’s not formed after parliamentary election, second round of the vote is held. On account of “disappointing election traditions” in Armenia, one can imagine, how and through which methods the ruling Republican party will provide mandatory stable majority.

Regarding to formation of other power bodies (5 members of Supreme Judicial Council, Attorney General, Chairman of Special Investigative Committee, Human Rights Defender, Central Electoral Commission, and judges of the Court of Appeal), they are appointed by 3/5 of the parliament votes. If we take into account, that 3/5 is 60%, and stable majority, stipulated by Article 89, will probably comprise about 60% as well, in fact, we’ll have not a system of classic parliamentary governance, but one-political-party-run system with dependence of judiciary on political party this time.

However, referendum of Constitutional reforms took place 6 December 2015.

According to observers’ recorded data, referendum was held with rough violations. There have been registered numerous cases of bribery; voting for another person and double voting; widespread stuffing of ballot boxes and its attempts; voters registered in fake supplementary voter lists; pressing, threatening of observers, proxies and reporters; hindrance to observers’ mission; irregularities between numbers of participated voters and ballot receivers; recounting of ballots, when electricity disconnections and change of voting results have been recorded (recalculations held in those polling stations, where “No” votes were dominating initially, but “Yes” votes became dominant after electricity supply cut); violation of scrutiny secrecy and uncovering of voter’s identity; presence of other persons in voting rooms; regular and organized voter’s transfer to polling stations by public transport, taxis and private cars; and so forth^[7].

IN LIEU OF CONCLUSION

What is the dynamics of the development in the field of human rights throughout 25 years in independent Armenia like? What challenges are coming next?

Conditionally it can be divided into two periods: pre-2011 period, starting from 1990, 1991 to 2001, and after 2001. After gaining independence Armenia’s authorities declared their commitment to values of democracy and human rights. Armenia joined UNO, OSCE, ratified conventions on human rights, but the temptation to maintain the power left all these on a declarative level.  

1995 parliamentary elections were the very first exam on democracy. Armenian authorities didn’t pass the test, and the vicious tradition of election fraud was rooted. The same year, Constitution adopted by forgery, approved Armenia’s de facto non-legal system. Impunity, arbitrariness and selective justice in Armenia have been intensified already in these very years.

Becoming a full member of the Council of Europe in 2001, Armenia assumed certain obligations in the field of democracy and human rights, in particular, establishing of an institution of human rights defender, transferring the prison system from the Ministry of Internal Affairs to the Ministry of Justice and etc[8]. Competence of the European Court of Human Rights (ECHR) was projected over Armenia and etc.

Despite greater expectations, however, Armenia’s membership to the Council of Europe if not fundamentally, then to some extent, played a restraining role in at least not worsening of conditions in the field of human rights. We may add certain success of different civic groups and movements and be optimistic if not…

If not the country’s joining Customs, then Eurasian Economic Union (EEU) in 2013. If we take into account human rights and democracy situation in EEU member countries, then rather gloomy picture of human rights conditions in Armenia covered by this report is less comparable with gloomier picture of other member countries.   

Hence, if the Union becomes a consolidated structure, as mapped by its founders, Armenia will forcedly adopt game rules of the integrated union, and we’ll record a serious step back in the field of democracy and human rights.

Improving Security Policy debates in Armenia (NED)

The Armenian Institute of International and Security Affairs (AIISA)