LEGISLATIVE AMENDMENTS
One of the key components of the Republic of Armenia Representative activities’ before the European Court of Human Rights is to guarantee implementation of the European Court’s assessments, as well as European standards on human rights in Armenia’s legal system. In this regard a number of fundamental reforms have been undertaken by the Representative to improve the national legislation. Reforms targeted at solving the issues such as protection of property rights, prevention of torture, etc., gave a possibility to ensure proper fulfillment of the Republic of Armenia’s international obligations.
Below is presented brief information about the reforms undertaken.
Constitutional reforms of 2005 have been marked by legislative reforms effectuated in view of bringing the national legislation in line with the European human rights standards. For instance, the Constitutional Court of the Republic of Armenia with its Decision No SDO-630 of 18 April 2006 has recognized specific provisions of Civil and Land Codes of the Republic of Armenia unconstitutional. These provisions prior had served as a ground for alienating the owners’ land plots in "Kentron" community of Yerevan and the immovable property located on them in public interest. Moreover, in case of Minasyan and Semerjyan v. Armenia, the European Court of Human Rights ruled that under Article 1 of Protocol No. 1 to the Convention, no law concerning the property in respect of which the applicants enjoyed either ownership rights or right of use has been adopted by the RA National Assembly, as envisaged by Article 28 of the RA Constitution, and the entire property alienation process, including the procedure for estimating the compensation amount, has been regulated by the RA Government decrees. To fill these gaps, on 27 November 2006 the RA Law on “Expropriation for the Needs of Society and the State” was adopted which contains clear legal regulation for the property alienation. The mentioned law regulates the entire alienation procedure by stipulating foreseeable, clear and precise legal grounds for the protection of the property rights. The RA Law on “Expropriation for the Needs of Society and the State” envisages that the State — for each case, when it recognises the property to be acquired in a paramount public interest — should substantiate that such interest prevails over the interest of the owners of the property subject to expropriation and it is impossible to meet this objective without acquiring the property in question. Part 3 of Article 11 of the above mentioned Law states that the market value appraisal of the immovable property or the property rights to the immovable property shall be conducted as prescribed by the RA Law on “Real estate appraisal activity".
Meanwhile, the transitional provisions of the RA Law on “Expropriation for the Needs of Society and the State” define that until 1 January 2007 the persons who following the court’s decision have the right to use the residential area of the apartment or the dwelling house, are considered to be property right holders to the apartment or dwelling house subject to alienation in public and state interest. Respectively, the mentioned Law also applies to the right of use.
On 28 June 2000 the Parliamentary Assembly of the European Council adopted Opinion No 221 and invited the Republic of Armenia to join the Council of Europe given that a number of commitments, including the adoption of a law on alternative service in compliance with European standard and pardon of all conscientious objectors sentenced to imprisonment or to service in disciplinary battalions, shall be implemented within the defined periods.
In cases of Bayatyan v. Armenia, Tsaturyan v. Armenia and Bukharatyan v. Armenia, the European Court of Human Rights ruled that the applicants’ conviction for draft evasion constituted an interference with their right to freedom of religion envisaged by Article 9 § 1 of the European Convention. To guarantee the mentioned rights and in view of implementing the mentioned judgments, on 2 May 2013 the RA Law on “Making amendments and supplements to the Law of the Republic of Armenia on “Alternative service” ” was adopted and as a result alternative labour service got entirely a new sense. More specifically, a service in compliance with the European standards – with mere labour (civil) nature and not relating to military service, is guaranteed. The effectuated amendments further clarify the grounds for joining alternative service by defining that any RA citizen may join alternative labour service, when undergoing military service in general is contrary to his religious beliefs or convictions. Part 3 of Article 14 of the amended Law states that the labour service is not subject to any military institution’s supervision. Articles 17 and 19 which accordingly regulate the procedure of joining alternative labour and stipulate rights and obligations of the alternative labour servicemen, have also undergone significant amendments. Thus, the requirements for providing the alternative labour servant with full employment, food, military outerwear of prescribed form, military underwear, place for sleeping, linen and items of personal hygiene, requirement of being present in the place of service throughout the whole day, ban on being engaged in any other activities, as well as the requirements of organising the leisure of the servant and visits with his family members as prescribed by the RA Law on "Approving internal service rules of the armed forces", have been removed.
On 2 May 2013 the RA Law on "Implementation of the Criminal Code of the Republic of Armenia" was adopted. According to that Law persons held liable on the grounds of their religion or beliefs, until 1 August 2013 could have submitted an application for joining alternative service, and the authorised body was obliged to make a decision on assigning them to an alternative service. In such circumstances the criminal cases pending before the courts, at the stage of preliminary investigation and pending before the inquest bodies should have been dismissed and the criminal prosecution of those people should have been terminated. During the years of 2013 - 2014 the Armenian Republican Commission on the alternative service examined 134 applications, of which only 1 has been rejected due to inaccurate information submitted to the Commission. Remaining 133 applications on joining alternative labour service were granted. Moreover, the Commission examined the applications of those persons who failed to apply within the prescribed time-limit.
The above-mentioned amendments and the practice of their implementation have been highly appreciated by the Council of Europe’s Committee of Ministers, Human Rights Commissioner’s Office and by many other institutions, as well as by Christian religious organisation of Jehovah's Witnesses. As a result, the Committee of Ministers has decided to close the execution of the above-mentioned cases.
In 2014, the mechanism of compensation for non-pecuniary damage was established in Armenia which was extremely important for the proper implementation of Republic of Armenia’s international obligations.
On 26 April 2002 the Republic of Armenia ratified the Convention on Human Rights and Fundamental Freedoms and assumed the obligation of ensuring the fundamental rights and freedoms guaranteed by the Convention on its territory. According to Article 5 § 5 of the European Convention "Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation". This provision obliges the State parties to the European Convention to provide through national legislation the right to the compensation for non-pecuniary damage caused in result of unlawful arrest or detention. Moreover, the need for ensuring the mechanism of compensation for non-pecuniary damage was also mentioned in a judgment against the Republic of Armenia. Particularly, in case of Khachatryan and others v. Armenia the European Court found that in absence of the mechanism of compensation for non-pecuniary damage, in result of which the person who has suffered pain following the violation of Article 5 § 1, 2, 3 or 4 of the Convention is deprived of the possibility to claim such a compensation constitutes itself violation of Article 5 § 5 of the Convention. Therefore, such a possibility should be prescribed by domestic legislation.
Notably, the opportunity to enjoy the right to compensation for non-pecuniary damage laid down in the European Convention is an important condition for guaranteeing the right to effective legal remedy enshrined in Article 13 of the Convention. The aforementioned is indicated in European Court’s positions expressed in a number of judgments. This position was also expressed in case of Poghosyan and Baghdasaryan v. Armenia, where the European Court established that “... in the event of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of possible remedies.” It also concluded that the applicant should have been able to apply for compensation for the non-pecuniary damage suffered by him as a result of his ill-treatment. No such compensation being available to him under Armenian legislation, the applicant was deprived of an effective legal remedy, and there has accordingly been a violation of Article 13 of the Convention.
On 19 May 2014 the National Assembly of the Republic of Armenia adopted the RA Law on "Making amendments and supplements to the Civil Code of the Republic of Armenia", the objective of which was to establish a mechanism of compensation for non-pecuniary damage for violation of the rights guaranteed by the European Convention. By establishing the mechanism of compensation for non-pecuniary damage, the implementation of the obligations assumed upon the ratification of the Convention is ensured and in specific cases citizens are vested with the possibility to claim compensation for non-pecuniary damage.
In particular, the mentioned Law is spread on the following cases:
(1) citizen’s torture/ill-treatment or illegitimate deprivation of life by the competent state body;
(2) failure to carry out a proper investigation into the fact of alleged torture/ ill-treatment or the death of a person in result of alleged actions or omission of state bodies or officials;
(3) unlawful deprivation of person's liberty;
(4) acquittal of a convict upon new or newly discovered circumstances (except for the cases when the conviction was wholly or partially attributable to the convict, for example, was based on his confession).
The court’s finding of the fact of violation of a right guaranteed by the European Convention is a necessary condition for claiming compensation for non-pecuniary damage.
In addition, the draft RA Law on "Making amendments to the Civil Code of the Republic of Armenia" is in the process of finalisation. The draft Law is aimed at supplementing the mechanism of compensation for non-pecuniary damage by making it consistent with the requirements of the European Convention and the decision of the Constitutional Court of the Republic of Armenia, as a result more complete execution process of European Court judgments regarding Armenia will be ensured.
On 9 June 2015 the National Assembly of the Republic of Armenia adopted the RA Laws on “Making amendments and supplements to the Criminal Code of the Republic of Armenia” and on “Making amendments and supplements to the Criminal Procedure Code of the Republic of Armenia”. The adoption of the mentioned Laws was necessitated by the importance of ensuring that domestic legal regulations in the field of criminal liability for torture comply with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 as well as the importance of the requirement to execute European Court’s judgments in respect of Armenia. In a number of judgments regarding Armenia (e.g. cases of Virabyan v. Armenia and Nalbandyan v. Armenia) the European Court has recognised violation of Article 3 of the Convention, thus obliging the Armenian authorities to take active steps towards increasing the effectiveness of the fight against torture.
The study of UN Convention on Torture provisions proves that the legislative regulations of the Republic of Armenia were not in compliance with the international standards, namely:
(1) the special subject of the corpus delicti, that is a state official, was not specified as a mandatory element of the corpus delicti;
(2) specific objective required by the Convention was not in place;
(3) in order to initiate criminal prosecution for cases of torture, the legislation of the Republic of Armenia stressed the need for victim’s complaint, and in case of reconciliation of the victim with the suspect, accused or accused-on-trial, the criminal case was subject to dismissal;
(4) the legal norm criminalising the corpus delicti of "torture" was stipulated in the section of crimes against human beings and not in the section of crimes against the state service.
The legal formulation of the corpus delicti of the torture has been amended by the RA Law on "Making amendments and supplements to the Criminal Code of the Republic of Armenia and has been fully brought in line with Article 1 of the UN Convention against Torture. Moreover, the corpus delicti envisaging liability for torture was formulated in a way to cover the cases when strong physical pain or mental suffering is caused by a person not deemed to be a state official but a private person.
The RA Law on "Making amendments to the Criminal Procedure Code of the Republic of Armenia" considers the cases of torture as a subject of public criminal prosecution, i.e. the victim's complaint is no longer mandatory for instituting criminal prosecution. A similar solution is also provided by the new draft Criminal Procedure Code. This legal regulation in each such case provides an additional guarantee for holding those responsible liable.
Following the mentioned legislative amendments the definition of torture prescribed in the national legislation is in full compliance with that of the UN Convention. At the same time, the equivalent qualification of crimes was also ensured. The mentioned legal regulation provides new quality legal grounds for the criminal policy pursued by the State against the act of torture committed by the state officials.
