[14 July 1997]
1. On 23 August 1990 the Supreme Soviet of the Armenian SSR, expressing the united will of the people, adopted the Declaration of Independence of Armenia, which signalled a radical turn in the life of the Armenian people and marked the beginning of a new era under a new political system. Having as its goal the creation of a democratic State ruled by law, and exercising the right of peoples to self-determination, Armenia embarked upon the process of establishment of independent statehood. The Declaration of Independence of Armenia is based on the Universal Declaration of Human Rights and universally accepted principles of international law. In accordance with the Declaration, only the Constitution and the laws of the Republic of Armenia have force throughout the territory of the Republic. Thus, Armenia was proclaimed an independent, sovereign State ruled by law. On 24 August of the same year, in accordance with the Declaration of Independence of Armenia, an Act was adopted whereby the Armenian SSR was renamed the Republic of Armenia (short form: Armenia).
2. On 10 December 1990, the Supreme Council of the Republic of Armenia adopted the Constitutional Act "On the consistency of acts of law with the Declaration of Independence of Armenia", which contained the following provision: "Pending the adoption of the Constitution of the Republic of Armenia, those provisions of the Constitution in force which are inconsistent with Acts adopted by the Supreme Council of the Republic on the basis of the Declaration of Independence of Armenia shall cease to be valid".
On 25 September 1991 the Supreme Council adopted the Act "On the fundamentals of independent statehood". Articles 1 and 2 of the Act provided as follows:
3. The right of peoples to independence is reflected in Armenian law and forms the basis of the Republic's foreign and domestic policies. This is strikingly confirmed by the legislative changes under way in the independent Republic directed towards the realization of the right of peoples to self-determination.
4. On 1 August 1991 the Supreme Council adopted the Act "On the President of the Republic of Armenia", whose article 1 provides, inter alia, that "The President of the Republic of Armenia shall be the highest official of the State and the head of its executive power".
5. The Act "On the procedure for the adoption, ratification and denunciation of international treaties by the Republic of Armenia" was adopted on 6 June 1992. The Act "On the diplomatic status of representatives of the Republic of Armenia abroad" was adopted on the same date.
6. The Act "On the procedure for importing and exporting objects of cultural value" was adopted on 8 July 1994. Its purpose is to preserve the Republic's objects of cultural value and to prevent their unlawful export or import and unlawful claims to their ownership. The Act is designed to assist international cooperation in cultural matters and to promote cultural links between Armenia and other countries.
7. On 27 March 1995 the President of the Republic of Armenia signed the "Constitutional Act of the Republic of Armenia". Under article 1 of the Act, the newly elected Supreme Council of the Republic is renamed the National Assembly of the Republic of Armenia. Article 2 provides that the Constitution of the Republic shall be adopted by the Supreme Council or, with the Council's consent, by referendum. The National Assembly shall exercise its powers for a term of four years (art. 3). Members of the Government may not be elected deputies. Judges, members of the staff of the Prosecutor's Office or the National Security Committee, or those serving in the militia or the armed forces also cannot be elected deputies (art. 4). Article 5 provides, inter alia, that "the National Assembly shall be composed of 190 deputies, 150 of whom shall be elected by majority vote to represent single-mandate constituencies and 40 by a procedure to represent a single constituency covering the whole territory of the Republic".
8. The new Constitution of the Republic of Armenia was adopted on 5 July 1995. It is founded upon the basic principles of independent statehood proclaimed in the Declaration of Independence of Armenia and upon the aspirations of the nation at large. Article 6 of the Constitution provides:
9. The Act "On administrative subdivisions of the territory of the Republic" was adopted on 4 December 1995. Other key Acts are those "On local self-government" (22 July 1996), "On presidential elections" (30 May 1996), "On elections of deputies to the National Assembly" (4 April 1995) and "On Armenian citizenship" (16 November 1995).
10. The country's economic system is in process of transformation. On 31 October 1990 the Supreme Council adopted a decision "On the implementation of the Republic of Armenia Property Act" which provided, inter alia, that pending the harmonization of the existing laws with the Property Act, the laws in force should continue to be applied insofar as they did not contradict the said Act.
11. The Property Act was adopted on the same date. Its second article provides, inter alia, that "the exercise of property rights must nor cause harm to the environment or breach the rights and lawful interests of citizens, enterprises, organizations and the State". Article 6 of the Act defines objects of State property. They are: water, land, airspace, fauna and flora, enterprises, institutions, equipment, objects of cultural and material value, results of intellectual activity, money, securities, etc. Article 11 establishes a procedure for the transmission of land property rights. Article 40 proclaims land and other natural resources to be objects of national value of the Republic and the property of the people. The right to own land and to exploit natural resources is transmissible. The Republic of Armenia owns and exploits the land and natural resources within its territory for the good of its people.
12. As already reported, the Act "On the fundamentals of independent statehood" was adopted on 25 September 1991. Article 8 of the Act provides, inter alia, that "the national wealth of the Republic of Armenia - land, minerals, water and other natural resources, as well as the cultural, economic and intellectual potential - shall be the property of its people". The Republic has a share in the national wealth of the former USSR, including the right of ownership of a part of its gold, diamond and foreign currency reserves, no matter in what country's territory these may be found. Article 9 provides: "In the Republic of Armenia the right to property shall be recognized and protected". Under article 14, "The Republic of Armenia shall apply independent financial and taxation policies and, to that end, shall create independent State banking and taxation organs and introduce a national monetary unit". All objects previously under USSR or Union Republic control are the property of the Republic of Armenia.
13. The "Code of Mineral Resources of the Republic of Armenia", which establishes rules for geological prospecting and the utilization of mineral resources, was adopted on 19 March 1992.
14. Armenia encourages free enterprise and is creating conditions for its development. On 14 March 1992 the President of the Republic signed the Act "On enterprises and entrepreneurial activities", the object of which is to establish a basis for entrepreneurial activities in the Republic and to define different types of enterprises and the rights and obligations of entrepreneurs.
15. The Act "On the privatization of State enterprises and uncompleted construction projects" was adopted on 27 August 1992. Its object was to create a market economy in the Republic through privatization and denationalization. Privatization of State property is designed to enhance citizens' rights and freedoms (including economic ones) and to improve the productivity of the market economy.
16. The Act "On the privatization of State and public housing" was adopted on 27 December 1993. The Act sets forth the main rules governing the privatization of State and council housing in the Republic.
17. The "Customs Code of the Republic of Armenia" was adopted on 27 August 1993 with the object of ensuring economic independence and security, protecting the domestic market, encouraging foreign economic links and defining the rights and obligations of customs and other State structures (enterprises, institutions, organizations and citizens) in the sphere of customs.
18. The Act "On private (family) enterprises", adopted on 13 June 1994, defines the concept of a private (family) enterprise, the rules governing the choice and cessation of activities and the rights, obligations and liabilities of entrepreneurs. Proceeding on the principle of free self-determination, article 8 of the Constitution sets forth the main lines of State economic policy, as follows: "The right to property shall be recognized and protected in the Republic of Armenia. The property owner may, at his or her discretion, manage, use and dispose of his or her property. The exercise of the right to property may not cause harm to the environment or violate the rights and lawful interests of other persons, the public or the State. The State shall guarantee the free development and equal legal protection of all forms of property, freedom of economic activity and free economic competition".
19. On 1 November 1994 the President signed the "Forests Code" of the Republic. The Code is designed to promote the scientifically founded preservation, protection, reproduction and productive utilization of the country's forests in the light of their economic and social significance. As nature and the environment are the property of human beings and of society as a whole, their non-rational utilization can cause immeasurable harm to mankind. Article 10 of the Constitution provides that "the State shall ensure the protection and reproduction of the environment and the rational utilization of natural resources".
20. It is not possible to speak of the realization of human rights and freedoms if the collective right of a people to self-determination is not recognized and, conversely, the right to self-determination cannot be realized if human rights are violated. In considering the means of guaranteeing the protection of the right of peoples to self-determination it is essential to take into account not only the rules of international law in general but also the specific character of the nation in question, for the right to self-determination is not vested in the State but in the nation or people. Hence it is not by chance that the question of self-determination generally arises when a people or nation finds itself in a position of dependence or when other forms of exploitation are practised in its respect and, consequently, when its status as a subject in law is not recognized by the dominant State.
21. Nagorny-Karabakh, which, like Nakhichevan, had formed an integral part of the Armenian State for thousands of years, was incorporated in the Soviet Union in 1920 and, by an arbitrary decision of an unconstitutional and unauthorized party organ, the Caucasian Bureau of the Central Committee of the Russian Communist Party (Bolsheviks) dated 5 July 1921, was transferred to the Soviet Republic of Azerbaijan. The decision was taken by an entity which had no right to participate in the national State-building activities of another State and, consequently, constituted an act of gross intervention in the internal affairs of another sovereign Soviet Republic. As a result, the right of peoples to self-determination was flouted and the will of 95 per cent of the population of Nagorny-Karabakh and of the population of Soviet Armenia was not taken into consideration*.
22. Within the Soviet Union, the Nagorny-Karabakh Autonomous Region acquired the status of an entity of the national-State system of the USSR as a federal union of States. As an autonomous national entity, the Autonomous Region was represented in the highest legislative organs of the USSR. The region's borders could not be changed without its consent. Yet notwithstanding these guarantees, throughout the years of Soviet rule Azerbaijan, with the tacit support of the Kremlin, pursued a policy of displacement of Armenians and assimilation of non-Turkic peoples, as evidenced by the results of the all-Union population censuses of 1970 (vol.4, Moscow, 1973, pp. 263-303) and 1989 (1979, Moscow, 1984, pp. 126-134). The changes in the national composition of the population of the Region from 1970 to 1989 are shown in the following table:
* In 1920 the League of Nations, in response to the application for membership by the Republic of Azerbaijan, "expressed its negative attitude" in view of the absence of a "stable government" in the Republic of Azerbaijan and of its territorial claims in respect of neighbouring countries.
23. The decline in the Armenian population of the Autonomous Region by 34,700 persons over the period from 1970 to 1989 was the result of the policy of Baku aimed at driving Armenians out of the region. A policy of "ethnocide" was methodically applied through the appropriation or destruction of monuments of Armenian culture. It should be noted that military action took place for the most part within the territory of Karabakh and adjacent districts, where a large number of monuments of Armenian culture are located. These monuments belong to different historical periods, from the early mediaeval temple of Amaras where the founder of Armenian writing, Mesrop Mashtots, created a first school in the early fifth century, to the nineteenth century church of Kazanchots in Shusha, which is the largest church in Transcaucasia.
24. Regrettably it must be reported that during the conflict most of the Armenian historical monuments were damaged or entirely destroyed. For example, the dome of the Kazanchetsots church was destroyed by aerial bombardment, the mediaeval Armenian church of Arakyul in the district of Gadrut was blown up, etc. The district museums at Mardakert and Shaumyan were destroyed and the fate of the exhibits remains unknown, as the Armenian population of these districts has been deported. At the same time the Karabakh side to the conflict, guided by humanitarian considerations, was able to protect and preserve monuments of Azeri culture (mosques at Shaumyan and Agdam and the mausoleum of Vazif).
25. International law defines a nation as a historical community of people which has emerged as a result of the formation of a common territory, economic links, literature, language and cultural particularities.
26. In 1987 a conflict flared up in northern Artsakh when the Azerbaijani leadership tried to force Armenians in the village of Chardakhlu to cede part of their land to a neighbouring Azerbaijani village. With perestroika beginning to take place in the USSR, the Autonomous Region of Nagorny-Karabakh applied to the Supreme Soviets of the Azerbaijan and Armenian Soviet Socialist Republics in February 1988 with a request "to consider and resolve in a positive manner the question of the transfer of the Nagorny-Karabakh Autonomous Region from the SSR of Azerbaijan to the Armenian SSR". On 1 December 1989, with a view to restoring historical justice, the Supreme Soviet of the Armenian SSR and the National Soviet of Nagorny-Karabakh adopted a decision to comply with that request. The decision was based on universally accepted principles of self-determination of nations and responded to the lawful aspiration to reunification of two forcibly separated parts of the Armenian people.
27. Azerbaijan countered the decision of the Supreme Soviet of the Armenian SSR by adopting a radically negative position. More than that, the political request of the Autonomous Region was followed literally only a week later by anti-Armenian pogroms and murders at the other end of the Republic, in Sumgait. This was the beginning of genocide and ethnic cleansing of Armenians from Azerbaijan. As a result, more than 350,000 Armenians, forsaking their homes and property, fled from Azerbaijan. Meanwhile, 8 to 10 months after the expulsion of the Armenians, Azerbaijanis living in the Armenian SSR were selling or exchanging their dwellings and leaving Armenia.
28. In the spring of 1991, with the object of deporting the Armenian population, the Azerbaijani leadership, helped by Soviet troops, carried out with considerable cruelty the punitive operation against Karabakh code-named "The Ring". The final act of retribution against the blockaded Autonomous Region was interrupted in the summer of 1991 by the incipient collapse of the USSR. Anti-Armenian pogroms at Sumgait (February 1988), Kirovabad (November 1988) and Baku (January 1990) and the deportation of the populations of 24 Armenian villages in 1991 testified to Azerbaijan's unwillingness and inability to ensure the safety of the population of Nagorny-Karabakh.
29. On 30 August 1991 the Supreme Soviet of the Azerbaijan SSR proclaimed the restoration of the national independence of 1918-1920, thereby initiating the process of secession of the SSR of Azerbaijan from the USSR. On 2 September 1991, proceeding on the basis of the USSR Act "On the procedure for dealing with matters arising from the secession of a Union Republic from the USSR", which gave autonomous entities and compactly settled nationalities the right to decide for themselves the question of their legal national status, a joint session of people's deputies of all levels of the Autonomous Region of Nagorny-Karabakh and the adjacent district of Shaumyan proclaimed the creation of the Republic of Nagorny-Karabakh.
30. The secession of the Autonomous Region/Republic of Nagorny-Karabakh from the Azerbaijan SSR/Republic of Azerbaijan and the holding of a referendum on independence in the presence of international observers took place before the de facto break-up of the USSR. On the date the Republic of Azerbaijan obtained its recognition, the Republic of Nagorny-Karabakh no longer formed part of it. The establishment of the Republic of Nagorny-Karabakh was thus irreproachable from the point of view of standards of international law.
31. After the break-up of the USSR, pursuing its strategy of genocide of Armenians, the Republic of Azerbaijan embarked upon a war of extermination of the peaceful population of the Republic of Nagorny-Karabakh and occupied 52 per cent of the Republic's territory. But the Armenians of Karabakh, as at the beginning of the century, took up arms and withstood the onslaught, and today Nagorny-Karabakh exists both de facto and de jure as an independent State entity.
32. Accordingly, Karabakh, within the borders of a territory recognized by the League of Nations as being disputed, never belonged to Azerbaijan within the true meaning of international law; Karabakh, as represented since 1991 by the Republic of Nagorny-Karabakh, has embarked on a process of restoration of legitimate mutual relations in the region, where relations had been disturbed since the time of the Sovietization of Transcaucasia.
33. In accordance with article 1, paragraph 3 of the Covenant, considering the right of peoples to self-determination to be a legitimate means of realization of fundamental human rights, Armenia regards it as one of the most important principles of its foreign policy to assist the realization of the right to self-determination anywhere in the world, including Nagorny-Karabakh.
Paragraphs 1 and 2
34. In discussing this article of the Covenant we propose to show to what extent its provisions are reflected in Armenian law. With regard to paragraph 1 of the article, the Constitution proclaims the following principles of equality of all citizens without any discrimination whatsoever:
35. The Act "On Compulsory Military Service" adopted on 9 December 1991 established the obligation to serve in the armed forces with a view to guaranteeing the independence and territorial integrity of the Republic and the security and peaceful life of the population. Article 1 of the Act provides: "Military service within the territory of the Republic of Armenia is the duty of citizens of the Republic". "The call-up age shall be between 18 and 27 years. Military service shall consist of fixed-term service (conscription), contractual service (enlistment), and service in the reserve. The period of conscription shall be 24 months (18 months for persons with higher education)" (art. 13). Article 12 of the Constitution reads: "Service in the armed forces of the Republic is the duty of citizens".
36. The Act "On the employment of the population" of 27 December 1991 regulates the legal, economic and organizational aspects of ensuring the employment of the population of Armenia and establishes mechanisms for the realization of the right of citizens to work, as well as State guarantees with regard to social security in the event of unemployment. Chapter IV of the Act is entirely devoted to social guarantees in the sphere of employment and is entitled "Rights and guarantees in the sphere of employment". According to article 16 of the Act, "enterprises, organizations and citizens of the Republic of Armenia, as well as non-citizens residing in the Republic, may be members of an economic community if their names are entered in a foreign economic register".
37. The Act "On State pensions" adopted on 20 March 1992 sets forth the legal, economic and organizational provisions governing State pensions and at the same time guarantees the right of pensioners to social welfare and financial security by establishing pensions based on work and pensions based on age. Under this Act, "all citizens of the Republic of Armenia shall have the right to State pension security in accordance with established procedure" (art. 1). The law also applies to foreign nationals and stateless persons residing in Armenia, except in cases specified by Armenian law and international treaties (art. 2).
38. On 25 September 1991 the Supreme Council of the Republic of Armenia adopted the Act "On the essential principles of independent statehood". Article 15 of the Act provides that "the Republic of Armenia guarantees the use of the Armenian language as the State language in all spheres, and also establishes an independent system of education, science, culture and information".
39. The Act "On language" adopted on 17 April 1993 sets forth the main principles of the Republic's policy on language, regulates the status of the language and also contains provisions for the implementation of the said principles by enterprises, institutions, organizations and organs of State power.
40. The Act "On social security for disabled persons" adopted on 24 May 1993 establishes the legal, economic and organizational foundations of social security for disabled persons and sets forth the main principles of State policy as regards the provision of the most favourable conditions and privileges to disabled persons with the object of ensuring that they have equal opportunities for the realization of their rights and abilities on an equal footing with other citizens.
41. Chapter II of the Act is devoted to the prevention of disablement and to medical rehabilitation. Chapter III deals with matters of education, upbringing and specialized training of disabled persons. Chapter IV guarantees the labour rights of disabled persons. Chapter V is devoted to the creation of suitable conditions for disabled persons and their access to the welfare infrastructure. Chapter VI regulates questions of social assistance provided to the disabled. Lastly, chapter VII is devoted to public associations of disabled persons.
42. 14 June 1994 saw the adoption of the Act "On victims of repression". The Act defines the term "victim of repression" and determines the privileges granted to victims of repression or their family members and heirs.
Paragraph 3
43. The Act "On the legal status of foreign nationals in the Republic of Armenia", adopted on 17 June 1994, is guided by universally recognized principles and standards of international law (art. 1) and pursues the following goals: establishment of a procedure governing the entry, residence, movement and transit travel of foreign nationals in Armenia, their departure from the country, and their obtaining a residence permit; and definition of their rights and obligations while in Armenia. Foreign nationals in Armenia shall enjoy the rights and freedoms established by standards of international law and by Armenian law. Foreign nationals shall be required to comply with the laws of the Republic of Armenia and to respect the national traditions and customs of its people (art. 2). Where international treaties of the Republic of Armenia provide standards other than those set forth in the law, the standards of the international treaty shall prevail (art. 3). The above provisions shall also extend to stateless persons residing in the Republic of Armenia unless the law of the Republic of Armenia provides otherwise (art. 4).
44. A foreign national in possession of a residence permit is entitled, on an equal footing with Armenian citizens, to inherit, bequeath or donate his or her property, to make use of insurance, burial and other services, and to be a member of charitable, cultural, trade union, sports and other organizations without the right to occupy a post in their governing bodies, unless this is inconsistent with the statutes of the organizations in question.
45. A foreign national in possession of a residence permit may become a member of an international organization active in the Republic. Possession of a residence permit entitles the foreign national to enter the Republic and to leave it. A foreign national having a temporary, regular or special residence permit is entitled to invite his or her next of kin to Armenia.
46. The right of foreign nationals to invite other persons to Armenia is determined by international treaties (art. 26). Foreign nationals in Armenia are answerable before the law like Armenian citizens except in cases specified by international treaty and Armenian law. In the event of violation of the established residence rules, living without residence papers or with papers which are invalid, violation of established registration rules, non-compliance with customs regulations, or failure to leave the Republic upon expiry of the entry or residence permit, a foreign national shall be brought to justice in the manner provided by Armenian law (art. 31).
47. Although the legislative acts adopted by the National Assembly of the Republic of Armenia do not contain a clear-cut definition of the term "discrimination against women", equality of rights of men and women is guaranteed by many provisions.
48. Armenia has become a party to the following conventions guaranteeing the rights and freedoms of women:
- 1951 Convention concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (21 December 1993);
- 1979 Convention on the Elimination of All Forms of Discrimination against Women (9 June 1993);
- 1957 Convention on the Nationality of Married Women (16 March 1994).
49. The National Assembly is at present considering the ratification of two further conventions, namely:
- 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage;
- 1952 Convention on the Political Rights of Women.
50. Equality of rights of men and women is proclaimed directly in articles 3, 4, 15 and 16 of the Constitution and indirectly in a number of other articles. The Armenian Criminal Code provides criminal liability for discrimination against women in the following cases:
- forcibly coercing a woman to enter into a sexual relationship (art. 113)
- preventing a woman from contracting marriage (art. 118)
- coercing a woman to have an abortion (art. 121)
- refusing to hire a pregnant woman (art. 139).
51. Although Armenia does not have a special institution for the defence of the rights of women, many government and non-government institutions do concern themselves with women's rights and problems. In Armenia there are no laws, regulations or policies that discriminate against women. In actual fact, however, women are not sufficiently involved in public life, although most of them have received a higher education. As a result of the changeover to a market economy, the number of jobs has drastically diminished. Women are most heavily affected by this situation. The rate of unemployment among women (67 per cent) is at present higher than among men. Women enjoy the same opportunities as men to participate in the cultural life of the country. Culture has traditionally played an important role in Armenian society, and women hold the highest positions in this sphere.
52. The Government is at present taking a number of steps to create the conditions for full equality between men and women. All mechanisms for development and success are equally accessible to men and women without any discrimination or preference whatsoever. Units dealing with social issues affecting the population, especially women and children, have been set up in various ministries and departments. A Standing Commission on public health and social issues exists in the Ministry of Social Insurance and Labour, and a Social Policy Directorate has been established within the Government. Both bodies are headed by women. In 1992 Parliament adopted an Act modifying article 15 of the Marriage and Family Code and, in particular, reducing the age of consent for girls from 18 to 17 years.
53. Women in Armenia are free to choose any profession. However, in the interests of protecting mothers and women's health generally, they are not allowed to do heavy manual labour or to work at night. Furthermore, pregnant women and nursing mothers may not be hired to do such work (Labour Code, art. 184-187). The mother's role in the family has always been emphasized and the right to maternity leave is enshrined in the law. Article 5 of the Marriage and Family Code places the family under the protection of the State.
54. The State protects the family by providing crèches and kindergartens, boarding schools and other children's establishments, establishing consumer supply services, providing financial assistance in the form of an allowance to multi-children families, and granting them privileges and other forms of aid. In Armenia, motherhood enjoys the protection of the State. Women are given the opportunity to combine motherhood with work. Armenia guarantees the protection of the rights of working mothers and provides financial and moral support to women and children, in particular in the form of paid antenatal and post-natal leave.
55. The Constitution guarantees the political, social and cultural rights of women. About 30 socio-political organizations are active in Armenia. Some of them, such as the union of women scientists, the union of women journalists and others, are established on a craft basis. Many other organizations are involved in social and political activities such as preservation of the environment, protection of mothers and children, promotion of equality of the sexes, etc. There are also international women's organizations which are joined by representatives of the Armenian diaspora. The most influential women's organization at present is the "Shamiram" socio-political association, which after the last elections became the second-largest party in Parliament, having won eight seats. There are currently 12 women deputies in the National Assembly.
56. Armenian women have the same right to education as men (98 per cent of them have received an education). All schools are co-educational with the exception of a recently founded college which is exclusively for girls.
57. Women enjoy the same right as men to vote and to be elected to all public posts. This right is guaranteed by articles 27 and 64 of the Constitution. Article 3 of the Constitution provides that "elections of the President, the National Assembly and organs of local government, as well as referendums, are held on the basis of the right to equal and direct suffrage by secret ballot".
58. Article 133 of the Criminal Code provides: "The use of force, deception, threat or bribery to prevent the free exercise of a citizen's electoral rights shall be punished by deprivation of freedom for a period of 1 to 2 years or by corrective labour for a period of up to 2 years".
59. The number of women in government, the National Assembly and other government agencies is fairly large, but there are considerably fewer women than men occupying leading positions.
60. During 1991-1994, only 1 out of 22 ministries was headed by a woman; in 3 ministries women occupied the post of Deputy Minister; and in only 14 out of 21 Departments of State did women occupy leading posts. They are more prominent in the spheres of culture, science and education, where they account for 71 per cent of all staff. The Ministry of Social Security is the only ministry out of 22 at present headed by a woman minister. The proportion of women in posts of highest responsibility is not more than 5.2 per cent. Although it is impossible today to restore the status of 1980-1985, rough estimates indicate that the proportion of women in the middle echelons of government does not exceed 10 per cent.
61. Local government organs in Armenia include 22 municipal councils from 7 regional councils, including the regional councils of Yerevan and Gyumriy. Women account for 41 per cent of responsible posts, 42 per cent in municipal, regional, settlement and village councils, and 47 per cent in juridical and legal organs. The small number of women in the highest echelons of power cannot be regarded as the result of special restrictions or quotas.
62. Matters pertaining to citizenship are dealt with in the 1996 Citizenship Act. In particular, article 6 provides that "a woman having Armenian citizenship who marries a citizen of another country shall not forfeit her citizenship, and vice versa".
63. Article 11 provides that "a child shall receive Armenian citizenship, irrespective of the place of birth, if the parents are citizens of Armenia. If only one of the parents has Armenian citizenship while the other is a citizen of another country, the question of the child's citizenship shall be settled by agreement in writing between the parents. In the absence of such agreement, and if the child was born in Armenia, it shall receive Armenian citizenship; if it was not, it shall remain stateless. If the parents reside permanently in Armenia, the child shall receive Armenian citizenship. If one of the parents is an Armenian citizen and the other is unknown or stateless, the child shall receive Armenian citizenship".
64. Thus, in granting citizenship the law does not give preference to either of the parents; the mother can transmit her citizenship to the child on equal footing with the father. Children can travel on the passport of either parent. Women receive a passport without the authorization of their husband or any other person. A woman does not need her husband's consent to travel abroad.
65. According to 1996 figures, Armenia has 1,385 general schools. According to information recorded in 1995, the literacy rate is 98 per cent of the population. At the present time Armenia has 45 private educational establishments which are licensed by the State. These higher educational establishments are attended by 9,853 students, 6,750 of whom are girls.
66. Traditional spheres of women's activity are: public health, where (according to 1995 figures) women account for 90 per cent of all students, education and the arts (78.9 per cent). However, the proportion of women is also quite high in economics (41.9 per cent), industry and in the sphere of communications and transport (40 per cent). Armenia has women painters, singers, poets and actresses with worldwide reputations. The number of women students in radio electronics, chemistry and computer sciences, as well as in some new areas such as management, banking systems, marketing, international relations and international law has also grown in the last few years.
67. According to 1995 figures, there are 15,040 women scientists (44.5 per cent) on the staff of research institutes and 2,398 women scientists (out of a total staff of 4,776) working within the system of the National Academy of Sciences, including 532 Masters of Science, 47 Doctors of Science and 5 Academicians. Armenia holds fifth place among the Commonwealth of Independent States in terms of the number of persons receiving science grants from the Soros Fund, 97 or 21 per cent of 456 such scientists being women.
68. After independence it became possible for Armenians to study abroad. Today, 50 per cent of the Armenians studying abroad are women. Every citizen is free to choose what kind of work he or she wants to do. In particular, article 29 of the Constitution provides as follows: "Every citizen is entitled to freedom of choice in employment". Everyone has the right to be paid not less than the minimum wage established by the State and to work under conditions which do not endanger his or her life and health (Labour Code, art. 29). Women and men enjoy the same rights (art. 14). Men and women receive equal pay for equal work and have equal opportunities for advancement (art. 83). Refusing to hire a woman or dismissing a woman on grounds of pregnancy or breastfeeding is prohibited (Labour Code, art. 197). The proportion of women among industrial and administrative workers was 41 per cent in the 1970s and 46 per cent in the 1980s; in the 1990s it is 48 per cent.
69. Women have the same rights as men to social security, health services, etc. A pregnant woman may not be dismissed from her job or transferred to lower-paid work without her consent (Labour Code, art. 197). A woman shall receive 70 days of paid antenatal leave and 3 years of partially paid post-natal leave, as well as a number of other privileges (Article 189-103 of the Labour Code and National Assembly resolution No. 267).
70. The country employs many different methods of assisting mothers by granting free passes for rest homes to mothers (and expectant mothers), arranging for special leave for mothers of below-age children, allowing mothers who are breastfeeding to work on special schedules, and granting them additional work breaks. All these privileges and welfare guarantees are listed in articles 193-196 and 264-265 of the Labour Code. In 1995, there were 19,183 single mothers in Armenia. The number is relatively greater in cities (36.4 per cent or 8,334 in Yerevan). The number of children in such families is 21,996, 86 per cent of the families having one child and 14 per cent two or more children.
71. Owing to the country's financial problems many children's establishments are not open, which adds to the difficulties of the mother and the family as a whole. In 1995, children's establishments were attended by 104,056 children, although capacity is available for 145,618.
72. In 1995, refugees, resettlers and internal migrants accounted for 14 per cent of the population (418,000 persons), 55 per cent of whom were women. Thirty per cent of the country's population (1 million), 514,000 of whom are women, are living below the poverty line. Studies have shown that the situation of refugee women is more difficult than that of men. For example, the majority of refugees have been obliged to settle in rural areas under conditions of extreme poverty, and since most of them previously lived in towns, it has been particularly difficult for the women to adjust to village life and to find work. A national programme for the integration of refugees is being considered by the Armenian Government. The programme will make it possible to resolve the problem of refugees' employment, housing and social security over a period of five years. The neediest groups of refugees are receiving assistance from the United Nations High Commissioner's Office for Refugees and other international organizations.
73. Figures for 1995 show 152,636 unemployed persons, including 109,232 women, as being registered with the Labour Exchange. Of these, 3,399 have children below the age of 2, 1,745 have three or more children, and 107 are disabled. In the cities, women account for 63.9 per cent of the total number of unemployed, the proportion in rural areas being considerably smaller. The prevalence of unemployed women over men can be partly explained by the fact that women with children below the age of 2 who acquire unemployed status receive an allowance additional to the child allowance.
74. In 1993 the Government adopted a decision "On granting a monthly allowance to persons having unemployed status and to mothers with children below the age of 2 years". In 1996, the unemployment allowance was 1,300 drams (US$ 3.50). Parents, irrespective of their income, receive an allowance of 1,200 drams ($3) for children below the age of 6.
75. An extensive network of special services has been established to deal with various aspects of maternity care. District polyclinics have special women's surgeries and maternity homes, and general hospitals have maternity wards. Women are entitled to paid leave for a total duration of 140 days preceding and following the confinement. Medical assistance to mothers and children is regulated by the State. Population growth is being maintained, but the rates of growth have diminished considerably. The average number of children per family is 2.2.
76. Armenia has 95,000 disabled persons (mostly in consequence of the earthquake at Spitak, in 1988). The State assumes full responsibility for aged and disabled persons without relatives.
77. Single mothers and mothers with many children enjoy the same privileges: the right to receive subsidies, housing, furniture, vouchers, etc., from the State. A pregnant woman and a mother of an infant below one year cannot be sentenced to death. Deprivation of liberty in the case of a woman is sometimes replaced by another sentence.
78. Women and men have the same right to land ownership. Problems of women working in rural areas are not treated separately from those of the whole of society. There are no special laws or rules for rural women. Under Armenian law men and women have equal rights with regard to civil and criminal procedure (art. 8 of the Criminal Code, art. 5 of the Civil Code). Article 8 of the Criminal Code provides: "In criminal investigation and in court proceedings, justice shall be administered on the basis of equality of rights of citizens before the law irrespective of the parties' origin, social status, race, nationality, language, profession, place of residence or other distinguishing features". Article 5 of the Civil Code provides: "In civil cases, justice shall be administered on the basis of equality of rights of citizens irrespective of the parties' origin, social status, race, nationality, sex, education, language, religion, profession, place of residence or other distinguishing features". By decrees of 12 January and 1 April 1996 the President appointed 94 judges, 25 of whom are women (the youngest woman judge is aged 25 and the oldest 57). Out of 6,825 elected national assessors, 3,228 are women. There is no discrimination in respect of women appearing as witnesses in judicial proceedings.
79. Men and women have equal rights with regard to the choice of the permanent place of residence and freedom of movement. Spouses have equal rights when contracting marriage and throughout the marriage until the date of divorce. If a divorce is pronounced, however, the rights of the children are regarded as predominant. The rights and obligations of spouses are set forth in the Marriage and Family Code.
80. Decisions pertaining to children are taken jointly by the parents.
81. In the event of divorce, property acquired during married life is divided equally between the spouses, certain advantages being granted, however, to the parent who assumes the care of the children. Parents, irrespective of sex, are obliged to pay maintenance for the support of their children. The amount of maintenance is determined depending on the parents' incomes (art. 21).
82. Polygamy is prohibited by law (art. 123 of the Criminal Code) and is punishable by deprivation of liberty for up to three years or corrective labour for up to one year.
83. The definition of a state of emergency, the conditions, grounds and procedure for proclaiming it, and the forms of government control and essential legal principles governing human rights and freedoms during that period are determined by the Constitution. In adopting the relevant provisions, the legislators were pursuing the following goal: taking into account the obligations assumed by Armenia under international law and, in particular, under the International Covenant on Civil and Political Rights, to ensure a legal order for the realization of fundamental human rights and freedoms that may not be subject to restriction save in exceptional cases specifically enumerated in the Basic Law and, of course, not inconsistent with the country's international obligations.
84. As regards international obligations, article 4 of the Constitution sets forth one of the main principles of a democratic State, namely, that the State guarantees the protection of human rights and freedoms on the basis of the Constitution in accordance with the principles and standards of international law.
85. It should be noted that, in accordance with the "conversion principle", the Constitution provides that "the standards of ratified international treaties shall be directly converted into standards of national law". The second paragraph of article 6 proclaims that the Constitution has supreme force and its standards are applied directly. The fourth paragraph of the same article states that ratified international treaties form an integral part of the legal system of the Republic. In this connection, the predominance of international law over national law is clearly spelled out. The same article specifies that, in the event of a clash between the international treaties and norms of national law, the treaty standards shall prevail.
86. The Constitution reserves for the President the right to proclaim a state of emergency as a mechanism for ensuring the realization of his essential rights and duties and as a counterweight to the corresponding constitutional rights of the National Assembly and the Constitutional Court. According to article 49 of the Constitution, "the President of the Republic shall uphold the Constitution and shall be the guarantor of the Republic's independence, territorial integrity and security". Article 55, paragraph 12 names the President as the Commander-in-Chief of the armed forces.
87. Under paragraph 14 of article 55, the President "in the event of imminent danger to the constitutional order (...) shall take measures appropriate to the situation". The Basic Law provides a number of measures to counterbalance this exceptional presidential right. First of all, article 55, paragraph 14 provides that, in taking measures dictated by an emergency situation the President must consult with the President of the National Assembly and the Prime Minister. He must address the people on the reasons for the emergency situation and the measures being undertaken. Legal provisions counterbalancing the presidential right to proclaim a state of emergency are also included in the powers of the National Assembly and the Constitutional Court.
88. Under article 100, paragraph 6 of the Basic Law, the Constitutional Court is required to authorize the presidential proclamation of a state of emergency and the measures deriving therefrom, on which basis the National Assembly may, under article 81, paragraph 3, suspend those measures and, by that token, revoke the emergency regime.
89. According to the spirit and the legal logic of the Basic Law, the State and its structures cannot in any way restrict certain major principles enshrined in the Constitution. Thus, the Constitution proclaims and defines the full legal capacity of the human individual irrespective of any circumstance or situation.
90. It must also be borne in mind that violations of national or racial equality belong to a separate category of State crimes. Article 69 of the Criminal Code provides legal responsibility in order to ensure the de facto realization of the principles enshrined in the Basic Law, as well as formulating the legal guarantees in force. Under article 91 of the Basic Law, "justice in the Republic of Armenia shall be administered solely by the courts in accordance with the Constitution and the laws", while article 92 specifies that the setting up of extraordinary courts is prohibited under any circumstances. An important legal guarantee is likewise contained in article 63 of the Basic Law, which limits the powers of the President of the Republic and prohibits the dissolution of the National Assembly under state of emergency conditions.
91. Under article 89, paragraphs 6 and 7, the Government must ensure the country's defence and national integrity and take measures towards the strengthening of legality, the protection of the rights and freedoms of citizens, and the protection of property and public order. Article 73, paragraph 3 empowers the National Assembly to oversee various spheres of public life. This right of the National Assembly is, by its very essence, a special right that cannot be restricted under any circumstances, including those of a state of emergency.
92. Another exclusive right of the President which also cannot be restricted under any circumstances is that of granting a pardon to a convicted person. This right remains in force at all times and is not subject to any limitation. Article 22 of the Criminal Code provides that the death sentence cannot be pronounced as a supreme penalty even in a state of emergency on persons who had not reached the age of 18 years at the time of commission of the crime or on women who were pregnant at the time of commission of the crime or at the time of sentencing. Sentence of death cannot be carried out on a woman who is pregnant on the date set for execution.
93. It should be noted that, whether or not a state of emergency obtains, State power is exercised in accordance with the Constitution and the laws.
94. It is also important to note that the Basic Law strictly limits the powers of all State structures, including the Presidency and the National Assembly, insofar as these may be inconsistent with international obligations assumed with regard to fundamental human rights and freedoms. This issue is dealt with in the chapter of the Constitution entitled "Fundamental Human and Civil Rights and Freedoms" by a series of articles specially set aside to prohibit and preclude arbitrary violations of citizens' rights by State structures. Article 44 of the Basic Law explicitly provides that "the fundamental human and civil rights and freedoms established under articles 23-27 of the Constitution may only be restricted by law if this is necessary for the protection of the security of the State, public safety, order, health or morals, or the protection of the rights, freedoms, honour and reputation of others". In that case the law permits the partial restriction of human rights and freedoms on grounds specified in the Basic Law.
95. Under such circumstances, which may arise not only under martial law but also in the event of a public emergency, a temporary restriction of the freedom of religion and of expression, including the right to seek, receive and impart information and disseminate ideas, the right to form and join associations, trade unions and parties, and the freedom to hold meetings, processions and demonstrations, is not ruled out. Partial and temporary restriction of these and other specific rights and freedoms is envisaged in article 45 of the Basic Law, which provides that "some human and civil rights and freedoms (...) may be temporarily restricted, in accordance with the procedure established by law, in a period of martial law or public emergency". The same article lists those fundamental rights and freedoms which cannot be restricted even under martial law or in a public emergency.
96. The following rights and freedoms are not subject to restriction:
- Article 17 of the Basic Law (right to life), article 19 (prohibition of torture or cruel or degrading treatment or punishment, and of subjecting an individual to medical or scientific experiments without his or her personal consent), article 20 (right to defend one's private and family life, honour and reputation, prohibition of unlawfully gathering, keeping, using and disseminating information about a person's private and family life, right to confidentiality of correspondence, telephone calls and postal, telegraphic and other communications), article 39 (right to restore rights that have been violated and to ascertain the correctness of the charges brought), article 41 (presumption of innocence, prohibition of placing the burden of proof on the accused person; the accused shall be presumed innocent until found guilty in accordance with the procedure established by law, i.e. by a court sentence which has duly entered into force).
- Article 42 (exemption from testifying against oneself or one's spouse or next of kin, prohibition of the use of evidence obtained by unlawful means, prohibition of imposing a penalty more severe than could have been imposed under the law in force when the crime was committed, principle of non-retroactivity of laws establishing or increasing criminal liability, prohibition of finding a person guilty of a crime if the act was not considered by law to be a crime at the time when it was committed).
- Article 43 (the rights and freedoms set forth in the Constitution are not exhaustive and may not be construed as denying other universally recognized human and civil rights and freedoms).
97. In a state of public emergency the ministries exercising power, such as the Ministry of Defence, the Ministry of National Security and the Ministry of Internal Affairs and their subdivisions and officials, act on instructions from their superiors within the framework of the Constitution and the laws and are not empowered to breach the laws applicable in a state of public emergency. The State Prosecutor's Office, within which the office of the military prosecutor is integrated as a separate subdivision, exercises in full the rights conferred upon it by the Constitution.
98. In a state of public emergency, the powers and duties of the internal monitoring services of the ministries exercising power are not subject to any restriction whatsoever. These services are required to identify and investigate all cases of violation of the law. It should be noted that the fundamental rights and freedoms enshrined in the Constitution of the Republic of Armenia and the legal guarantees of their realization, possible restrictions upon them, and the limits of emergency powers contained therein were, for political reasons, absent from the old Constitution or bore a merely declaratory and formal character owing to the absence of legal guarantees.
99. As for the present Constitution and its provisions, reproduced above, they indisputably need to be regulated by appropriate legislative action. Extensive work is being done in this direction both by Government structures and by public organizations, scientific establishments, political parties and trade unions. The experience of other countries in this sphere is being studied and efforts are being made, with the help of international organizations, to benefit from the wealth of the international community's experience. Laws designed to govern the activities of criminal investigation services, the police and the courts, as well as a number of laws which will operate in public emergencies, are in the drafting stage. Their enactment and practical implementation will enable the Republic of Armenia to carry out in full its obligations assumed under article 4 of the Covenant.
100. On 29 August 1990 a state of emergency was proclaimed throughout the territory of the Republic by a decision of the Supreme Council. This was due to unlawful acts on the part of a military formation, the so-called Armenian National Army, which had brought about a worsening of the situation in the Republic. On 14 March 1992 the President issued a Decree in which, with a view to rapidly resolving the state of tension which had arisen in the town of Artik and avoiding fresh conflicts, he ordered the proclamation of a state of emergency in the town of Artik and the imposition of a curfew from midnight to 6 a.m. On 16 March 1992 the Supreme Council adopted a decision proclaiming a state of emergency at Artik for a period of 15 days.
101. On 19 June 1992 the President decided, in view of the state of tension which had arisen in southern areas of the Republic, to issue a Decree proclaiming a state of emergency for a period of three months in the districts of Megrin and Kapan and imposing a curfew from midnight to 6 a.m. On 29 July 1992, in accordance with the President's decree of the same date, the Supreme Council approved the decision to proclaim a state of emergency for two months in the town and district of Goris, and for the same period in the district of Krasnoselsk.
102. On 22 October 1992 the Supreme Council adopted the decision "On the publication of a text concerning the bombing of inhabited localities in the district of Goris by the Azerbaijani air force", whose contents may be summarized as follows:
103. The requirements of this article are reflected in article 43 of the Constitution, which provides as follows: "The rights and freedoms set forth in the Constitution are not exhaustive and shall not be construed to exclude other universally accepted human and civil rights and freedoms". Moreover, the last part of article 42 provides: "Laws establishing or increasing liability shall not have retroactive effect".
104. It is evident that presenting in the Constitution an exhaustive list of human and civil rights, even if it were possible, would run counter to the very essence of the Constitution and would impede the further development and transformation of human rights and freedoms. It would also predetermine the scope of future legal regulation of various relationships arising in the course of development of society, thus preventing the emergence and legal confirmation of new rights and freedoms. In the current stage of transition to market relations, and given the difficult economic conditions and the low standard of living of the population, violations of various kinds do occur (for example, the real cost of electricity is lower than what we have to pay, and similar anomalies). These problems are, for the most part, connected with privatization, the introduction of charges for education, public health, and so forth.
105. Armenia's Constitutions in the Soviet period never reflected the first and most important human right, the right to life. From the legal point of view, the right to life was recognized by the State and proclaimed in the Constitution of 5 July 1995. Article 17 of the Basic Law provides: "Everyone has the right to life".
106. The norms set forth in the Constitution have supreme legal force. According to the accepted fundamental legal principle, the provisions set forth in the Constitution, including the right to life, are protected by the State, which means directly and unequivocally that no one may be arbitrarily deprived of life. The right to life is guaranteed by articles 44 and 45 of the Basic Law, which prohibit any restriction upon the right to life under any circumstances, such as martial law, public emergency, etc.
107. In a number of countries, of which Armenia is one, the death penalty is legalized as an exceptional punishment. This fact is not in itself inconsistent with the obligations assumed by Armenia. The State intends to abolish the death penalty completely in the future. This abolition may occur in the next few years, once the necessary legal, financial and technical preconditions have been met. According to the Constitution the death penalty is a form of punishment only temporarily in force. Article 17 provides that the death penalty, pending its abolition, may be prescribed by law only for exceptionally serious crimes. The provisions of the new Constitution will be reflected in the new Criminal Code which is being drafted at present.
108. It should be noted that during the Soviet period death sentences were carried out outside Armenia. Persons sentenced to death would be transferred to isolated places of confinement in other Republics of the Union of Soviet Socialist Republics, where the sentence would be carried out in accordance with the established procedure. Since the date of proclamation of Armenia's independence, not a single execution has been recorded within the territory of the Republic; indeed, there exists no legal mechanism for carrying out this penalty.
109. Not a single one of the death sentences pronounced since 1991 has been carried out. During this period, 24 persons were sentenced to death. All of them were males who had reached their majority and all had committed serious crimes with aggravating circumstances. Of those sentenced to death, 18 are alive at present, one was killed in his cell by other prisoners on death row and two died a natural death. The latest sentence of death was pronounced in 1996. It should be noted that no death sentence has been passed on a woman in the past 15 years.
110. From the legal point of view, the following legislative restrictions are currently in force in the matter of the death penalty: under article 22 of the Criminal Code, "persons who had not reached the age of 18 years at the time the crime was committed cannot be sentenced to death". The same rule appears in the Act "On the rights of children" adopted on 5 May 1996 on the basis of the Constitution in force with a view to guaranteeing the realization and application of the relevant constitutional norms. In the Criminal Code in force, the death penalty has limited application as a punishment for women. Furthermore, Armenian law not only incorporates but expands the restrictions upon the application of the death penalty to pregnant women contained in paragraph 5 of article 6 of the Covenant. In particular, "the death penalty cannot be applied to a woman pregnant at the time of commission of the crime or of passing of sentence".
111. Proposals to prohibit the application of the death penalty to persons over the age of 65 are being discussed as part of the consideration of basic provisions of the Criminal Code currently at the drafting stage. During the Soviet period, the Criminal Code also provided for the sentence of death in the case of 19 civil crimes.
112. After independence, the Act "On amendments and additions to the Criminal Code of the Republic of Armenia" of 11 May 1992 abolished the death penalty in respect of five crimes of an economic nature, viz.: (1) theft, (2) robbery, (3) brigandage, (4) swindling, (5) misappropriation on a particularly large scale by stealing, embezzlement or abuse of official status. The same Act abolished criminal liability for breaching the rules on foreign currency operations (art. 83 of the Criminal Code was adopted in 1969). The Criminal Code provides for the death penalty in the case of the following crimes:
- High treason (art. 59)
- Espionage (art. 60)
- Terrorist acts (art. 61)
- A terrorist act against a representative of a foreign State (art. 62)
- Sabotage (art. 63), plus 3 other types of State crimes, namely:
banditism (art. 72); acts which disorganize the work of corrective labour establishments (art. 73); and forgery or circulation of false money or securities (art. 82).
Two crimes against the life, health, freedom and honour of others, as follows:
- premeditated murder with aggravating circumstances;
- rape with aggravating circumstances; and three crimes of other types, namely:
- aircraft highjacking;
- attempt on the life of a militia worker;
- receiving bribes.
113. Thus the Criminal Code of the Armenian Republic (pending the adoption of a new Criminal Code) provides the death penalty for 13 kinds of crime. It should be noted that in the past 15 years no sentence of death has been passed for receiving bribes, forgery or circulation of false money or securities, or breaching the rules on foreign currency operations, i.e. for essentially economic crimes.
114. Bearing in mind the harsh experience of Stalinist repression, the Basic Law not only proclaims that justice in the Republic shall be administered only by the courts in accordance with the Constitution and the law (art. 91) but also prohibits the establishment of extraordinary courts (art. 92). Pending the entry into force of legal and judiciary reform, the investigation of crimes punishable by the death sentence is performed by the Supreme Court of the Republic acting as the court of first instance. From the legal point of view all penalties, including death, can be applied only when the sentence has entered into legal force.
115. An individual may be charged under criminal law and any sentence (including death) may be passed against him or her only in accordance with the law in force at the time of commission of the crime. In addition, article 42 of the Constitution provides that "a punishment may not exceed that which could have been imposed under the law in force at the time of commission of the crime" and that "a person shall not be considered guilty of a crime if the act was not legally considered to be a crime at the time of its commission". Furthermore, "laws establishing or increasing liability shall not have retroactive effect".
116. "Every convicted person, including one sentenced to death, is entitled in all cases to have his or her sentence reviewed by a higher court in accordance with procedures established by law, and is also entitled to petition for pardon or mitigation of the penalty imposed" (art. 40 of the Constitution). With reference to the above-mentioned rights of persons sentenced to death it should be noted that since the Stalinist period, requests for pardon or mitigation of sentence under cassation and review procedures have been submitted in all cases where the death sentence has been passed, the defence submitting such requests according to the established procedure irrespective of the wishes of the person sentenced to death.
117. The rights set aside for the President of the Republic in article 55 of the Constitution include the exceptional right to grant pardons to convicted individuals (para. 17). Under article 95, paragraph 8 of the Constitution, this enables the President to apply to the Judicial Council, which must finally pronounce itself on matters relating to pardon. Under article 23 of the Criminal Code, the death penalty may be replaced by 20 years of deprivation of freedom. According to article 81 of the Constitution, the National Assembly, upon the recommendation of the President of the Republic, may declare an amnesty for convicted persons. The President's right to grant a pardon and the National Assembly's right to declare an amnesty are not subject to restriction under any circumstances whatever.
118. As to the legal prevention and prosecution by the State of cases of arbitrary deprivation of life, it must be pointed out that the Basic Law in force provides for a review of the existing legal and judicial system. Furthermore, two ministries - the Ministry of the Interior and the Ministry of National Security - have been merged into one, and foreign intelligence no longer forms part of the new ministry as a separate structure.
119. Provisions on the right to life will be fully developed and reflected in the laws resulting from legal and judicial reform, including provisions relating to the role of the police, weapons and their use, the investigation and inquiry activities of the Prosecutor's Office, etc. Pending the completion of the reform and the enactment of new laws, the means of enforcement employed, including rules governing the use of weapons, do not essentially differ from the basic principles of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, 1990).
120. The use of firearms by law enforcement officers is allowed, under the regulations in force, only after a warning shot has been fired and only in the presence of direct or acute threat or obvious danger to life or health or other serious consequences, or in the event of an attack on a law enforcement agent, an official or another person. Weapons may be used when a person who has committed a crime attempts to escape while being taken into custody, while under arrest, or from a place of deprivation of freedom. Naturally, the use of firearms even in such cases is allowed only after all other means have been applied or in circumstances where the use of other methods is not possible. It should also be noted that when weapons are used, even in such cases, internal administrative and Prosecutor's Office inspections are conducted on a compulsory basis so that a conclusion as to the legality of the use of firearms may be adopted.
121. During the review period, there has been one case where firearms were used with a lethal outcome. The subsequent investigation by the Prosecutor's Office concluded that the use of firearms was legitimate under the circumstances (a serious crime involving aggravated murder; the suspect, in trying to avoid arrest, had taken an elderly person hostage and had threatened to use a hand grenade; after several hours of negotiations, having exhausted all methods, agents of the Ministry of Internal Affairs employed firearms to neutralize the criminal and save the life of the hostage). Under the regulations in force, the official who fired the weapon must provide first aid to the wounded person, failing which he may be charged with non-assistance to a person in danger (art. 128 of the Criminal Code), and must also inform his superiors who, in their turn, must immediately notify the State Prosecutor.
122. With a view to reducing to a minimum the threat of war and violence on national or racial grounds, the State has drawn up a set of legal provisions which are still being further refined and completed. Article 48 of the Constitution directly prohibits the use of rights and freedoms to foment national, racial or religious hatred for the purpose of incitement to violence and war. Crimes against the State include the violation of national and racial equality (art. 69 of the Criminal Code), which in turn includes criminal acts intended to foment national and racial hatred, inter alia in conjunction with violence.
123. The legal, economic and organizational bases for ensuring the anti-epidemic safety of the population, as well as guarantees provided by the State to preclude harmful and dangerous environmental effects on the human organism, are established in the Act "On ensuring the anti-epidemic safety of the population of Armenia" of 12 December 1992, practical guarantees for its application being provided in the Criminal Code. Thus, article 63 of the Criminal Code establishes criminal liability for causing mass intoxications and spreading epidemics, which is considered to be a crime against the State.
124. Articles 165 and 293 of the Criminal Code make it a criminal offence to violate veterinary rules in such a way as to cause an epizootic or to infringe rules established with the object of fighting epidemics.
125. The marked worsening of the social and economic situation in Armenia from 1988 onwards entailed an increase in the number of cases involving loss of life. However, the situation is gradually beginning to improve. Stabilization trends are reflected in changes in the child mortality figures: in 1992, there were 18 stillborn infants for every 1,000 live births, while in 1994 the figure had fallen to 15.4. The maternal mortality figure declined in 1993. So far as premeditated deprivation of life is concerned, the 59 cases of premeditated and attempted murder recorded in 1987 rose to 90 in 1988, 111 in 1989, 203 in 1990, 220 in 1991, 334 in 1992 and 713 in 1993. The figure for 1994 was 201, that for 1995, 150 and that for the first 9 months of 1996, 116. The number of cases increased six-fold between 1988 and 1992 but has been halved since 1992. The main objective of the State and the law enforcement agencies is to reinforce the clear trend towards a reduction in mortality figures.
126. Cases of premeditated deprivation of life and premeditated murders are classified in domestic law in the following way:
(a) Ordinary premeditated murders, including murder of a child by the mother;
(b) Premeditated murders with aggravating circumstances.
In the latter case, the legislators have provided for the death penalty among other forms of punishment.
127. The following types of murder are considered by the law to have been committed with aggravating circumstances:
(a) Those motivated by the hope of gain;
(b) Those motivated by hooliganism;
(c) Those in which the victim was performing an official or public duty;
(d) Murder where there were two or more victims;
(e) Murder of a woman known to the perpetrator to have been pregnant;
(f) Murder committed in a specially cruel manner or by a method endangering the lives of many persons;
(g) Murder committed for the purpose of concealing another crime or facilitating its commission, or murder involving rape;
(h) Murder committed by a particularly dangerous recidivist or a person having already committed a premeditated murder (not including murder committed under mitigating circumstances; premeditated murder committed in a state of strong mental agitation are considered in the same way);
(i) Self-defence or deprivation of life in extreme circumstances by a kidnapped person or a person deprived of freedom by some other unlawful means is not considered to be a crime. Beyond certain established limits, the Criminal Code treats deprivation of life as murder with mitigating circumstances.
128. The law also provides for murder committed through carelessness, which constitutes a criminal offence under article 103 of the Criminal Code. Armenian law considers a case of deprivation of life to be due to carelessness where the perpetrator was aware of the possibility that his or her action or failure to act would have dangerous consequences but thoughtlessly hoped to avoid them, or where the perpetrator failed to foresee the possible consequences but should have done so.
129. Persons in a state of irresponsibility at the time of commission of the act are not subject to criminal liability. Such person must undergo compulsory medical treatment by order of the court. Driving a person to suicide is subject to criminal punishment. Premeditated infliction of grievous bodily harm leading to death is treated as a criminal offence in the Criminal Code. A separate category is provided for non-premeditated deprivation of life, e.g. cases of infringement of rules governing construction and other work, infringement of safety rules in industrial operations involving the use of explosives, traffic accidents, etc.
Article 7 - Prohibition of torture or cruel, inhumanor degrading treatment or punishment
130. The Armenian legal system and the activities of the judicial organs are conducive to the application of the provisions of article 7 of the Covenant. Article 19 of the Constitution provides that "no one may be subjected to torture or to treatment and punishment that are cruel or degrading to the individual's dignity; no one may be subjected to medical or scientific experiments without his or her consent". Article 14 of the Criminal Code prohibits the use of force, threat or other unlawful means in order to compel an accused or other persons to give evidence.
131. The Criminal Code establishes criminal liability for the use of threats or other unlawful acts by a person conducting an investigation or preliminary inquiry with a view to eliciting evidence in the course of interrogation, and for the use of force or taunts against the person being interrogated. At the same time, articles 182 and 183 of the Criminal Code establish criminal liability for all officials on grounds of abuse of power or official status or of exceeding official authority with the object of violating the legally protected rights and freedoms of citizens. Article 450 of the Civil Code sets forth the rights of organs of investigation and preliminary inquiry, the Office of the Prosecutor and court officials irrespective of any wrongdoing by those organs or their officials. In the interests of expanding the scope of protection against unlawful acts by officials, the draft of a new Criminal Code also prohibits the use of such methods by all representatives of the judicial system in respect of all witnesses.
132. On 23 September 1993 the Republic of Armenia became a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, whose provisions, under article 6 of the Constitution, form an integral part of Armenian law, are legally binding and must be applied by all law enforcement agencies of the Republic. It is envisaged that these provisions will be included in the new Criminal Code with a view to enhancing the effectiveness of their direct implementation.
133. However, despite the existence of the minimum legal provisions required and although the use of torture or cruel, inhuman or degrading treatment is subject to criminal punishment, such acts by officials of investigation and preliminary inquiry do still occur in the Republic. This is due, on the one hand, to what is still a rather low level of protection of human rights and, on the other hand, to the imperfections of the laws governing court procedures, especially as regards the gathering of evidence and the lack of clear-cut legal procedures for the assessment thereof.
134. According to the corrective labour code of the Armenian Republic, every convicted person is obliged to work. Long experience has shown that high-grade results cannot be achieved and high-quality competitive goods cannot be produced with forced labour. Even for a convicted person, work must be a source of inner satisfaction. By upholding the principle of voluntary work and guaranteeing fair payment for work, corrective labour establishments can become the basis for the production of special quantities of high-quality and competitive goods.
135. Methods of offering work involvement incentives to convicted persons are being applied with a view to achieving this end. For example, convicted persons who work are allowed additional visits and granted conditional early release. In this way the convicted person can earn money to buy goods of first necessity.
136. Today, many establishments of the penitentiary system have no production capacity whatever while some others have managed to maintain only a small part of the production capacity formerly at their disposal. With a view to relaunching and expanding the production process, the status of equipment, industrial buildings, structures, means of transport and lathes in all penitentiary establishments has been investigated and work on improving the technical status has been carried out. The penitentiary system's production activities have been relaunched on the basis of available means and of local and imported raw materials, and new production capacities have been developed.
137. Today the system has seven active production enterprises working essentially in the fields of:
- metal processing;
- wood processing;
- light industry;
- stone extraction and processing.
The gross volume of production in 1996 was expected to reach 500 million drams, or more than 4 times the 1995 figure. Convicted persons also engage in plant growing (ginger, pomegranates, potatoes, cabbage, beetroot).
138. Special auxiliary farms established under the Investigations Directorate of the Ministry of Internal Affairs specialize in the following activities:
1. Pig breeding
2. Poultry breeding
3. Fish breeding
4. Bee-keeping
5. Greenhouse plant growing.
The purpose of these farms is to supply the system with meat products (50 per cent until 1997, reaching 100 per cent by the year 2000). The goal of correcting the convicted persons is not subordinated to that of deriving a profit from their labour.
139. The sale of women is prohibited in Armenia, as is prostitution. The Criminal Code contains special articles on this subject; for instance, article 149 provides penalties for prostitution in the form of a warning or fine corresponding to 50 to 100 per cent of the offender's wage. Keeping a vice den is punished by deprivation of freedom for not more than five years. The growth of prostitution in Armenia can be explained by economic difficulties. Nevertheless, the traditionally severe attitude of society towards prostitution means that the problem is not among the country's most serious ones. Sex tourism does not exist. No cases of rape of prostitutes have been recorded.
140. Article 18 of the Constitution provides that "everyone is entitled to freedom and security of person. No one may be arrested or searched otherwise than in the manner prescribed by law. A person may be detained only by order of the court and in accordance with the legally established procedure". The novelty from the legal point of view is that, while the old system according to which a person may also be detained by authorization of the prosecutor remains temporarily in force during the transitional period, the principle that "a person may be detained only by order of the court" enshrined in article 18 of the Constitution will come into force once the Code of Criminal Procedure has been brought into line with the Constitution (art. 116, para. 14 of the Constitution). Under article 116, paragraphs 7 and 12 of the Consti human rights and freedoms during that period are determined by the Constitution. In adopting the relevant provisions, the legislators were pursuing the following goal: taking into account the obligations assumed by Armenia under international law and, in particular, under the International Covenant on Civil and Political Rights, to ensure a legal order for the realization of fundamental human rights and freedoms that may not be subject to restriction save in exceptional cases specifically enumerated in the Basic Law and, of course, not inconsistent with the country's international obligations.
84. As regards international obligations, article 4 of the Constitution sets forth one of the main principles of a democratic State, namely, that the State guarantees the protection of human rights and freedoms on the basis ime;
3. If obvious traces of the crime are found on the suspect or his or her clothes, or in his or her lodgings".
142. If other information that gives grounds for suspecting a person of having committed a crime comes to light, he or she may be arrested only while attempting to escape, or if he or she lacks a permanent place of domicile, or if his or her identity has not been established. There is a mandatory rule that a statement about the arrest must be prepared, indicating the date, hour, grounds and motives for the arrest as well as other data. Data concerning the suspect's family members, relatives or others close to him or her, supplied by the suspect himself, must likewise be included in the statement on a mandatory basis, and these persons must be informed of the arrest without delay. The suspect must also be informed of the contents of the statement.
143. It should further be noted that the duty to notify the arrest is incumbent upon the arresting official. The law does not provide for giving the arrested person the possibility to inform his or her family of the arrest even where there is no presumption that direct communication between the arrested person and another individual, e.g. by telephone, may interfere with the elucidation of the circumstances of the crime or with evidence thereof.
144. The law requires that the arresting official must, within no more than 24 hours, inform the prosecutor who, in turn, must within 48 hours authorize the suspect's pre-trial detention or order his or her release. In addition to arrest, the law provides for another form of deprivation of freedom, namely pre-trial detention, which as a law enforcement measure is generally chosen in the case of crimes punishable by deprivation of freedom for a period of more than one year.
145. In deciding whether to authorize pre-trial detention, the prosecutor is obliged by law to familiarize himself in detail with all documents setting out the grounds for the suspected or accused person's arrest. This obligation is mandatory in all cases where the suspected or accused person is below age. The law reserves the right to authorize arrest for the General Prosecutor of the Republic of Armenia and his deputies, and also for regional prosecutors.
146. Under the law in force, pre-trial detention can be chosen as a law enforcement measure when there are grounds for assuming that, if left at liberty, the accused person will try to evade investigation and judgement, interfere with the elucidation of the true facts, engage in criminal activities, etc. In this connection, account is taken of the person's previous character, occupation, age, state of health, family status and other circumstances. The pre-trial detention ruling, which must on a mandatory basis specify the relevant grounds and motives, must be announced to the person to whom it relates.
147. According to the existing procedure, the decision on the type of law enforcement measure to be applied, including pre-trial detention, is adopted after the person has been formally charged. Every suspected or accused person has the right to appeal the grounds for and legitimacy of the arrest or detention. Similar declarations or complaints may be lodged, irrespective of the arrested or detained persons's wishes, not only by persons representing his or her interests but also by any individual or organization. Such declarations and complaints must receive immediate and detailed consideration.
148. Under article 6 of the Code of Criminal Procedure, which provides for security of person, the prosecutor must immediately release any person unlawfully deprived of liberty or kept under detention for a period longer than that specified in the sentence. In meeting this requirement, prosecutors must, whether or not an application or complaint has been filed, systematically verify the grounds for and legitimacy of arrests carried out by the organs of investigation and inquiry. The Prosecutor-General, assisted by his deputies and staff, must check the legitimacy of and grounds for any preliminary sanctions imposed by regional prosecutors.
149. On 22 January 1993 the Commonwealth of Independent States, including Armenia, adopted at Minsk the convention "On legal relationships and the granting of legal assistance in civil, family and criminal cases", which also regulates matters of extradition and charging of criminals. No laws have as yet been passed on criminal liability for crimes committed by Armenian citizens in other countries, extradition of citizens of other countries and legal issues arising in that connection. Such problems are resolved on the basis of the above-mentioned Minsk Convention, bilateral agreements between Governments (e.g. with Bulgaria), the Republic of Armenia Citizenship Act of 16 November 1995 and the laws of the former USSR.
150. The legal basis for this approach is the principle of "direct conversion" proclaimed in article 6 of the Constitution, which provides that ratified international treaties form an integral part of the Republic's legal system. Where a treaty contains standards other than those provided in the national law, the treaty standards shall prevail. In addition, article 116, paragraph 2 of the Basic Law provides that, pending the complete harmonization of the law with the Constitution, existing Acts and other legal provisions shall apply insofar as they do not contradict the Constitution.
151. On the basis of the above, in cases involving criminal liability for crimes committed in other countries a person may be deprived of liberty for a period of not more than one month (in exceptional cases, two months) at the request of the party requesting extradition with a view to the preparation of additional documentary materials. At the same time, Armenian citizens who have committed a crime in another country are deprived of liberty by being placed in pre-trial detention on the basis of evidence brought by the party concerned or an intermediary or if the criminal forms the subject of an international search. Once the documents relating to the crime have been received from the party concerned, the question of criminal responsibility is resolved by the generally established procedure in accordance with the Criminal Code and the Code of Criminal Procedure in force in the Republic of Armenia. In this event, and also in the event of an international search, the person concerned is deprived of liberty in accordance with the procedure established by law, the form of punishment being chosen in the light of grounds and motives as specified in law. Furthermore, it is essential that the act committed should be considered a crime and that the period of the statute of limitations should not be exceeded.
152. According to the law, the decision to extradite citizens of other countries rests with the Prosecutor-General, who will not authorize the extradition or deprivation of liberty of the persons concerned if there are grounds to suppose that the person is suffering political persecution, if the charge is unfounded or not prepared in the proper manner, if the act which has been committed is not considered to be a crime in Armenia, or if the person being extradited may be exposed to cruel or degrading punishment in a third country. For example, in October and November 1996 we released A.V. Sidorin, a citizen of the Russian Federation, who had been arrested on a charge of participating in an act of brigandage on Russian territory and formed the subject of an international search. Sidorin was released in the absence of documents substantiating the charge. A. Sarkissian, an Armenian citizen arrested in the territory of the Russian Federation in connection with a theft, was released and escaped trial on grounds of criminal liability because the party concerned failed to produce grounds for the charge.
153. Cases of deprivation of liberty under the procedure described above are verified, without exception, irrespective of whether an application for review or a complaint has been lodged. It should be noted that neither Sidorin, who was not extradited to the Russian Federation, nor Sarkissian, the Armenian citizen who was not brought to trial on grounds of criminal liability, had lodged complaints in connection with their arrest. It should be noted further that under article 40 of the Basic Law everyone is entitled to receive legal assistance, in some cases free of charge, as soon as charged.
154. In the past, the period of pre-trial detention in Soviet territory was two months and could be extended to six months by the prosecutor of the Republic or to nine months by the Prosecutor-General of the USSR, although the Code of Criminal Procedure contained no provision to that effect. In exceptional cases, upon the intervention of the Prosecutor-General of the USSR, the USSR Supreme Soviet could extend the period of pre-trial detention to one or two years or longer.
155. At the present time, the procedure in force "without exception" in the Republic provides for a pre-trial detention period of not more than three months; at the same time, this period may be extended to nine months by the Prosecutor-General of the Republic of Armenia depending on the amount of work involved in the case. If, after the expiry of nine months, no criminal case relating to the person in pre-trial detention has been submitted to the court, he or she is released. Obviously unlawful arrest or detention is considered a crime under the Criminal Code and is punishable by deprivation of liberty for not more than three years under article 192 of the Code. The reasons for unlawful arrest or detention are without significance so far as criminal liability is concerned.
156. It should be noted that the provision in article 48 of the Basic Law that "everyone shall respect the rights, freedoms and dignity of others" applies fully to officials of law enforcement agencies, who, under article 5 of the Basic Law, may perform only such acts as they are authorized to perform by law. Under the law in force, the court is in no way bound by the sanction of the prosecutor issued at the preliminary investigation stage. Taking into account the obligations assumed by the Republic and, in particular, article 9, paragraph 3 of the Covenant, it has been decided to reproduce this paragraph textually in the laws being adopted within the framework of the law reform in progress.
157. Although the provision of article 9, paragraph 5 of the Covenant that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation is not textually reflected in the Constitution, it follows from the standards proclaimed by the Constitution. Thus, for example, articles 15 and 16 of the Basic Law establish the citizen's full legal capacity and the equality of all before the law. As already stated, articles 38, 39 and 40 of the Basic Law provide that "everyone is entitled to defend his or her rights and freedoms by all means not prohibited by law and (...) to the restoration of any rights that may have been violated. (...) Compensation for damage caused to the injured party shall be provided according to the procedure established by law".
158. Norms in line with the above-mentioned principles are to be established in the laws enacted within the framework of the law reform. The procedure in force at present is that established by the Supreme Soviet of the USSR on 18 May 1981. It should also be noted that the Act "On victims of repression" adopted on 14 June 1994 provides that "within the framework of compensation for victims of repression and their first-degree heirs, the State shall grant them a plot of land free of charge in the former place of residence, the right to a double share of participation in privatization, free use of transport and other privileges".
159. The Civil Code (para. 450) stipulates that "a person who has been deprived of liberty unlawfully or without justification shall, by way of compensation, retain the right to bring an action before the courts. In such cases, the State must compensate the full extent of damage caused irrespective of the guilt of officials of law enforcement agencies".
160. The Directorate for the Application of Criminal Penalties forms an integral part of the Ministry of the Interior, to which it is subordinated. The Directorate conducts many complex and varied activities and forms a mechanism which includes legal, economic and social structures with a bearing upon the rights and interests of a considerable portion of the population.
161. Armenia has several types of establishments for the application of penalties:
1. Corrective labour establishments, the regime in which may be strict, general or intensive;
2. Educational corrective colonies;
3. Prisons;
4. Pre-trial detention centres;
5. Hospitals; and
6. Settlement colonies (open prisons).
The total number of persons serving time in these establishments is approximately 6,000.
162. In addition to meeting the requirements of the penitentiary system, it is considered important to involve persons temporarily isolated from society in work and to provide them with food and clothing, as well as to awaken in them a sense of respect for law and order and to develop their finer human qualities without degrading their dignity. The penitentiary system is today operating in a normal manner, order reigns in the establishments and the fulfilment of regime requirements is assured.
163. The principal regime requirements of places of deprivation of liberty are the following: convicted persons must, in all cases, be kept in isolation from the rest of society; permanent control must be exercised over them in such a way as to preclude their committing other crimes or anti-social acts; all obligations must be strictly carried out. The conditions of confinement depend on the degree of danger to society of the crime committed. At the same time, it is not the aim of the penitentiary system to torture or to practise cruel, inhuman or degrading methods. The penitentiary regime in corrective labour colonies is selected on the basis of the following criteria:
(a) Crimes committed while serving a sentence, including State crimes: crimes directed against human life, health and dignity; unlawful acts committed in places of deprivation of liberty (escape, attempted escape, misappropriation of State or personal property, etc.);
(b) The convicted person's status with regard to violations of the rules of corrective labour colonies, including: number of violations committed; qualitative aspect of the violations; number of exceptional punishments imposed for violating rules (confinement in punishment cells, transfer to a building of a different type, imposition of prison regime for part of the time remaining to be served);
(c) Any unlawful acts committed by members of the corrective labour colony staff, including: acts of physical torture; violations of the rights of convicted persons; acts degrading to the human dignity of the convicted person.
The regime in the penitentiary establishment is selected on the basis of answers to these three groups of questions.
164. A strict legalized internal discipline in places of deprivation of liberty regulates the procedure for the reception of convicted persons into the corrective labour colony, their conduct during work and rest times, their right to keep certain authorized objects and belongings, the procedure for conducting inspections, the receipt of letters, parcels and packages, visiting procedures and the procedure for the release of the convicted person, as well as the quantity of foodstuffs and objects of first necessity that may be put on sale. The internal discipline rules are made known to all convicted and detained persons. Punishments and methods of encouragement are applied while the sentence is being served.
165. The following methods of encouragement are applied in the event of compliance with the rules and of good conduct:
- Commendation;
- Reward;
- Authorization to receive an extra package;
- Authorization to receive a short or prolonged visit;
- Early cancellation of a previously imposed punishment;
- Transfer of special-regime prisoners who have served one third of their sentence to an ordinary building;
- Transfer of convicted persons who have served one half of their sentence from prison to a corrective labour establishment;
- Transfer from a special regime establishment to a strict-regime establishment after serving one third of the sentence;
- Transfer from a general, special or strict regime establishment to a settlement colony (open prison).
166. In addition to the above, persons receiving a positive assessment who have given proof of having mended their ways may, in accordance with the procedure established by law, be recommended for parole or for the replacement of their sentence by a lighter one. The following punishments are applied to convicted persons while serving their sentence:
- Warning or reprimand;
- Out-of-turn duty to clean the building or grounds of the place of deprivation of liberty;
- Cancellation of the next visit due;
- Withdrawal of the right to buy food for a period not exceeding one month;
- Transfer to solitary confinement for up to 15 days (in corrective labour colonies, 10 days);
- In prisons, transfer to punishment cells for up to 15 days;
- In general, special and strict-regime establishments, transfer to a building of the cellular type for up to six months;
- In prisons, transfer to strict regime for two to six months;
- By court decision, replacement of the time remaining to be served by prison regime for a period of up to three years;
- Transfer from open prison back to an establishment with the regime previously determined by the court.
167. The task of corrective labour establishments is to observe human rights while finding ways of preventing crimes from being committed. With this end in mind, after the proclamation of independence in 1991 the Ministry of Internal Affairs and the Prosecutor's Office established an experimental procedure for visiting and sending parcels to convicted or detained persons. The experiment yielded positive results and since April 1993, pending the adoption of new corrective labour laws, a new procedure agreed with the Prosecutor's Office is being temporarily applied in places of deprivation of liberty. Convicted persons have the right to receive 50 kg of food packages a month in a single delivery or at different times, while those in pre-trial detention may receive up to 10 kg a week. All restrictions have been lifted on the range of foods that may be included in a package.
168. The annual number of family visits will also be increased in the interests of developing the convicted persons' moral sense and helping them to maintain close links with their families. Thus, while the penitentiary code of the former USSR provided that convicted persons held in general-regime establishments could receive three short and two prolonged visits a year and those in other types of establishments even fewer, one short visit a month is now authorized regardless of the type of establishment. Depending on the number of rooms available for prolonged visits at a particular establishment, persons who have not violated the regime requirements are allowed prolonged visits of up to three days not more and not less than once a month. Visits of this kind are granted only to the next of kin of convicted persons. A new rule allows arrested persons who have conducted themselves in a positive manner to receive visits from children under the age of 5.
169. There are also changes as regards convicted persons being authorized to leave the establishment for short periods. Whereas in the past such leave was granted only from general-regime establishments, today it is also granted from strict and special-regime establishments for periods of not more than seven days. Evening classes have reopened. A work-group method has been developed inside the establishments; convicted persons are separated on the basis of the work-group/hostel principle. Public organizations of convicted persons are allowed to operate (community council with sections dealing with production, sports and health matters, a section for the prevention of breaches of the law, etc.). The number of persons involved in activities of this kind is gradually increasing, with positive results. Events of a religious nature are being organized, which is an innovation.
170. Thanks to the intervention of the Ararat patriarchate of the Armenian Apostolic Church, sermons are being preached, religious rites performed and prison libraries enlarged. Special rooms have been set aside for worship. Convicted and detained persons have access to the mass media. Whereas in the past prisoners were completely isolated from the outside world, today they are allowed to watch television, listen to the radio and use other information media. Telephone links have also been established between convicted persons and their families.
171. An appropriate procedure for the consideration of declarations, complaints and petitions operates while a prisoner is under investigation or serving a sentence, as well as after release. In the first place, an accused person is entitled as soon as he or she has been charged to employ the services of a lawyer for the defence of his or her rights and interests. An accused person or defendant may, at the start of the judicial proceedings, challenge the appointment of the judge (art. 26 of the Criminal Code) and may also refuse the participation of a lawyer (art. 46). Under article 323 of the Criminal Code, once sentence has been passed by the court, the convicted person or his family may, within seven days, file an appeal for cassation, after which the criminal case goes before the Court of Cassation. The prosecutor in charge of overseeing a criminal case may, with a view to protecting the convicted person's interests, appeal the sentence passed on procedural grounds.
172. After one third, one half or two thirds of the sentence have been served, depending on the crime committed and the length of the sentence, the corrective labour establishment, bearing in mind the character and degree of improvement and re-education of the convicted person as well as any representations received in writing, refers his or her case to the court, which considers the question of transferring the convicted person to an open prison or of granting a conditional or early-conditional release.
173. While serving the sentence a convicted person who has repented of the crime may apply to the President with a request for pardon. Taking into account the danger to society of the crime committed and the personal conduct of the convicted person, the President, by individual decision, grants a pardon or rejects the request. In the case of rejection, the convicted person or his family may, in accordance with the established procedure, address the same request to the President only after one year has elapsed.
174. While sentence is being served, the chief of the penitentiary establishment personally receives members of the convicted person's family and studies their declarations or petitions. The convicted person also has an unlimited right to apply to relevant international organizations with a petition to examine the facts of the case.
175. All subdivisions of the Directorate of Corrective Labour Establishments possess outpatient medical centres which provide first aid and carry out simple surgical interventions. The medical centres are equipped with the necessary medical technology and have certain specialized facilities (stomatology, X-ray, etc.). In cases where more highly qualified medical attention is required, the convicted person is transferred to the Directorate's central hospital in accordance with established procedure.
176. The State devotes special attention to the problem of juvenile crime. The Directorate of Penitentiary Establishments operates a colony in the town of Abovyan where convicted minors are kept separately from adult prisoners. The colony includes a place of pre-trial detention to which juvenile detainees undergoing criminal investigation are transferred from all over the country and where they are held pending sentencing. All buildings and structures are permanent ones designed to hold up to 500 convicted minors.
177. Armenian law does not provide for any situation in which a person who has failed to fulfil any contractual obligation might be deprived of liberty.
Paragraph 1
178. The right of Armenian citizens to liberty of movement and choice of residence in the territory of the Republic is provided in article 22 of the Constitution. As for foreign nationals, while this right is not directly provided for them by the Constitution or the laws, it is guaranteed by the constitutional provision to the effect that ratified international treaties form an integral part of the country's legal system and their standards prevail over those of national law.
179. In order to register, a foreign national must produce:
(a) A document establishing his or her right to reside in the Republic (residence or entry permit);
(b) A document pertaining to his or her occupation of housing space (certificate of privatization of the dwelling, rental agreement or other).
Registration is effected upon production of these documents. It should be noted in this connection that the object of registration is not to issue a residence permit but to obtain information on the foreign national's place of domicile. Registration cannot be refused if all the above-mentioned documents are produced. The same procedure applies to registration of Armenian citizens on the basis of domicile.
Paragraph 2
180. Article 22 of the Constitution proclaims the right of all Armenian citizens to leave the country. A foreign national may be denied permission to leave the country only in the following cases:
(a) If criminal proceedings have been instituted against him, pending the conclusion of the proceedings;
(b) If he has been convicted, pending completion of the sentence or cancellation of the penalty;
(c) If sentence has been passed or a decision adopted in his respect, until he has served the sentence or is released from serving it (Act "On the legal status of foreign nationals in the territory of the Republic of Armenia", art. 15).
In all other cases a foreign national may freely leave the Republic of Armenia on presenting at the frontier control point an internationally recognized document establishing his identity or issued by the Ministry of Internal Affairs of the Republic of Armenia in place of such a document.
181. In addition to the above restrictions on the right of foreign nationals and Armenian citizens to freedom of movement and choice of place of residence, certain restrictions are also imposed by the Act "On the State borders of the Republic of Armenia". In particular, the Act stipulates that entry of and sojourn in a border area or strip are permitted only with the consent of the appropriate organs.
Paragraph 4
182. Article 22 of the Constitution provides that "every citizen has the right to return to the Republic". No special permit of any kind is required under Armenian law to enable an Armenian citizen to enter the Republic of Armenia.
183. A foreign national may be administratively expelled from the Republic of Armenia if his activities threaten national security, public order and morals or the rights and freedoms of citizens, as well as in other cases established by Armenian law. An Armenian court may order the expulsion of a foreign national as an additional penalty. A term of deprivation of liberty of not more than two years may be replaced by expulsion from the territory of the Republic. The President may substitute expulsion from the territory for a court sentence passed on a foreign national. The expulsion of a foreign national is notified by the court within 10 days through the Ministry of Foreign Affairs to the mission representing his interests (art. 34). If a foreign national staying in the Republic of Armenia is accused of a crime committed in the territory of any other country, and if that country or an international organization requests his extradition, extradition is effected in accordance with procedures established by international treaties (art. 35).
184. The Constitution provides that all are equal before the law and shall be given equal protection of the law without any discrimination (art. 16). The principle of equality of citizens before the law and the court is also proclaimed in the Criminal Code (art. 5), which provides that justice shall be administered on the basis of equality of the rights of citizens before the law and the court irrespective of origin, social and property status, race, nationality, sex, education, language, religion, occupation, place of residence or other circumstances.
185. The principle of democratization of criminal investigation proceedings is upheld in article 39 of the Constitution which provides that, with a view to the restoration of any rights that may have been violated and the elucidation of the correctness of the charge, everyone shall have the right to a public hearing by an independent and impartial court under conditions of equality and in compliance with all requirements of justice.
186. The participation of the media and members of the public during a court trial or a part thereof may be prohibited by law with a view to protecting public morals, public order, national security, the private lives of the parties or the interests of justice (art. 39 of the Criminal Code). In this connection, article 12 of the Code of Criminal Procedure provides that hearings shall be conducted in public in all courts except where this is inconsistent with the protection of State secrets. Closed court hearings may also be authorized by a reasoned decision of the court in cases relating to crimes committed by persons below the age of 16 or involving sexual crimes, as well as in other cases, with the object of preventing the disclosure of information about intimate aspects of the parties' lives. The Civil Code provides that the court may also, by a reasoned decision, conduct a closed hearing in the interests of preserving the secrecy of adoption.
187. Under article 41 of the Constitution, "a person accused of a crime shall be considered innocent until proved guilty in accordance with the procedure established by law, i.e. by a court sentence which has legally entered into force". The same article provides that the defendant shall not be obliged to prove his innocence and that unsubstantiated suspicions shall be interpreted in the defendant's favour. The Constitution and the Code of Criminal Procedure provide the following guarantees of protection of the rights of accused persons:
188. Under article 40 of the Constitution "every convicted person shall have the right of review of his sentence by a higher court according to law". A convicted person's right to compensation for damages is considered to form part of the law of damages and is dealt with in article 450 of the Civil Code, which provides that "damages suffered as a result of being unlawfully convicted, unlawfully charged, knowingly arrested or detained in an unlawful manner, or unlawfully sentenced to an administrative penalty in the form of corrective labour shall receive full compensation from the State irrespective of any guilt on the part of officials or the court, the Prosecutor's Office, or the organs of preliminary investigation and inquiry".
189. The contents of article 15 of the Covenant are reflected in article 42 of the Constitution, which reads as follows:
"1. The imposition of a penalty heavier than that which could have been applied under the law in force when the crime was committed shall be prohibited.
2. A law which establishes or increases criminal liability shall not have retroactive effect."
Under article 6 of the Criminal Code, the criminal nature of an act and its punishability are determined by the law in force at the time of commission of the act. A law which abrogates the penalty for an act or which provides for a lighter penalty does have retroactive effect, i.e. it extends also to acts committed prior to its promulgation. A law which establishes a penalty for an act or which makes the penalty heavier is not retroactive. The principle of inescapability of punishment (art. 15, para. 2 of the Covenant) is reflected in article 4 of the Criminal Code, which reads as follows:
190. Article 16 of the Constitution provides that "all are equal before the law and shall be given equal protection of the law without any discrimination". Under article 9 of the Civil Code, civil status as a person before the law, or in other words the right to exercise civil rights and obligations, is recognized in equal measure for all citizens of the Republic. Foreign nationals and stateless persons in the Republic enjoy the status of persons before the law on an equal footing with Armenian citizens. The law provides for certain exceptions in the case of foreign nationals. For example, in accordance with the Real Estate Act and the Land Code a foreign national in the Republic of Armenia may not exercise land property rights. Foreign nationals may not join political parties established in the Republic.
191. Some exceptions affecting foreign nationals are also provided under the Privatization Act. These exceptions are, however, few in number and cannot be construed as failing to recognize the status of foreign nationals as persons before the law. At the same time, the Civil Code provides that the Government of the Republic may, by way of countermeasures, impose restrictions on citizens of countries which impose special restrictions on the status of Armenian citizens as persons before the law. These restrictions may not, however, relate to the rights of foreign nationals, who exercise their rights on an equal footing with Armenian citizens.
192. Armenian law provides special rules governing other expressions of the status of individuals as persons before the law which relate to the capacity of citizens to acquire civil rights and to create obligations for themselves by their own actions. Under the law, civil capacity arises at the age of majority, i.e. on reaching the age of 18. No one's civil capacity may be restricted in any other way except in cases established by law (e.g. in the event of mental illness, feeble-mindedness, alcohol abuse or use of drugs).
193. The civil capacity of foreign nationals is determined by the law of the country of which they are citizens, while that of stateless persons is determined by the law of their country of permanent residence, except in cases where such persons cause damage in the territory of the Republic. The capacity of such persons to be held liable for damages in specific cases is determined by Armenian law.
194. Armenia has signed a number of treaties on mutual legal assistance with other countries, e.g. the CIS countries, Bulgaria and Romania. These treaties provide for additional guarantees relating to the recognition of the status of nationals of those countries as persons before the law.
195. Freedom from arbitrary or unlawful interference with privacy, family, home or correspondence and from unlawful attacks on honour and reputation is proclaimed in the following articles of the Constitution:
Article 20:
Article 21:
Article 38:
196. Article 135 of the Criminal Code provides that "unlawful search, unlawful eviction and other acts which infringe the inviolability of the home shall be punished by deprivation of liberty for a period of up to one year or by corrective labour for the same period or by dismissal from the post held". Article 126 provides that "violation of the confidentiality of citizens' correspondence and telephone or telegraphic communications shall be punished by corrective labour for a period of up to six months".
197. Article 23 of the Constitution proclaims "the right of everyone to freedom of thought, conscience and religion". One of the first laws enacted after independence was the Act "On freedom of conscience and of religious organizations" (17 January 1991), which regulates in more detailed fashion the relations arising from the realization of this constitutional right and establishes guarantees for its enjoyment. Article 1 of the Act provides as follows: "Every citizen shall freely decide his or her attitude towards religion and shall have the right to profess any religion or none and to perform religious rites alone or together with other citizens".
198. Article 3 of the same Act prohibits "the use of violence against a citizen because of his or her attitude in connection with participation or non-participation in religious schools, services, rituals (rites) and ceremonies". Direct or indirect restriction of the religious rights of citizens, religious persecution and the fomenting of religious hatred give rise to liability before the law. Under the same Act, the realization of the right to freedom of conscience is subject only to such restrictions as are essential to the protection of national security, public order, health and morals or of the rights and freedoms of others.
199. While the laws concerning religion which were in force under totalitarian conditions for over 70 years were, in practice, aimed at restricting the rights of religious organizations, the Act of 17 June 1991 bestowed the most extensive rights upon all religious faiths practised in Armenia. For the first time religious organizations were given the right, upon due registration of their statutes with a State organ, to obtain the status of a legal entity, thus becoming able to own property, open religious schools, engage in publishing and charitable activities, etc.
200. Under the Act, the church in the Republic of Armenia is separated from the State. Accordingly, the State has no right to compel citizens to profess any particular religion. It may not interfere in the activities of churches and religious organizations. The State finances neither the activities of religious organizations nor atheist propaganda; at the same time, it recognizes the right of members and ministers of religious organizations to participate in public and political life on a footing of equality with other citizens. Financial and other donations received by religious organizations are not subject to taxation.
201. Churches and other buildings of historical significance are transferred without charge to the ownership or free use of religious organizations. Another important provision of the new Act is the fact that, in contrast to the earlier legal position, religious organizations are no longer bound to register with the authorities but may decide for themselves whether or not they wish to do so. However, registration does confer the status of a legal entity.
202. The fundamental principles of freedom of conscience are also enshrined in the new Constitution adopted on 5 July 1995, article 15 of which provides as follows: "Citizens, irrespective of their national origin, race, sex, opinions, and social and property status, shall have all the rights, freedoms and obligations established by the Constitution and other laws".
203. A special organ, the State Council on Religious Affairs, has been established in order to regulate the relations between the State and religious organizations in accordance with the Freedom of Conscience and Religious Organizations Act. The main duties of the Council are the following:
1. Registering the statutes of religious organizations at their request;
2. Facilitating agreement with State organs on specific issues and providing the necessary assistance to State organs with a view to reaching decisions on such issues;
3. Participating on behalf of the State as a mediator in the settlement of problems or disputes arising between Armenian religious organizations.
204. For the purpose of registration, a religious organization must submit to the State Council on Religious Affairs its statute and a list of at least 50 founder members. This requirement does not apply to the religious communities of national minorities, for which the 50 founder members clause is not compulsory. A decision to register a religious group or to refuse to do so must be taken within a period of one month. Refusal to register may be appealed in accordance with judicial procedure. At present there are 14 different religious groups registered in Armenia.
205. Armenia was the first country in the world to embrace Christianity as the State religion in 301 A.D. A temple which is still the centre of the Armenian Apostolic Church today was founded in the same year at Echmiadzin, where the residence of the head of the church, the Supreme Patriarch and Katolikos of all Armenians, is also located. The present Katolikos, Garegin I, is the 131st head of the Armenian Apostolic Church.
206. The overwhelming majority of Armenians both inside and outside the country profess the Armenian Apostolic Church as their national church. Despite its dominant position, the Armenian Apostolic Church treats other religions with serenity and understanding. Besides the Armenian Apostolic Church, the following religious organizations are registered in Armenia:
- Russian orthodox church
- Armenian catholic church
- Religious community of the Yezidis
- Judaic community
- Animist community
- Krishna conscience society
- Baha'i society
- Mormons
- Baptists
- Evangelists
- Pentecostals
- Seventh Day Adventists
- Charismatics.
Communities of "Jehova's Witnesses" and individual members of the so-called "Moon Church" and the "Aun Sinreke" sect are operating without registration.
207. It should be noted that about half of the religious organizations listed above have come into existence and begun to operate in the past few years as the result of the liberalization of the law and the active presence of foreign missionaries. The activities of foreign missionaries developed on a broad front after the disastrous earthquake at Spitak in 1988, when these persons entered Armenia together with humanitarian aid, and are continuing now that the blockade and the energy crisis have placed Armenia in a difficult economic situation. Despite this factor and the presence of many different religious currents, religious life in Armenia can on the whole be described as serene.
208. The right to hold any opinion enshrined in article 19 of the Covenant is proclaimed in article 24 of the Constitution, which provides: "Everyone is entitled to assert his or her opinion. No one shall be compelled to renounce or to change his or her opinion". The second part of the same article, which provides that everyone is entitled to freedom of speech including the freedom to seek, receive and impart information, is also closely connected with this provision of the Covenant.
209. Matters relating to the realization of the right to freedom of speech are regulated in greater detail by the Act "On the press and other mass media", which, together with the Freedom of Conscience Act, was one of the first laws enacted by the Armenian State (on 8 October 1991). The Act provides that the press and other mass media are free and are not subject to censorship. Citizens have the right, with the help of the press and other mass media, to express their opinions and points of view and to obtain prompt and accurate information on all public issues. The press and other mass media have the right to receive information from many State organs and public and political organizations and their leaders, unless divulging the information requested is restricted by law. The Act also proclaims the inadmissibility of abuses of freedom of speech. Thus, its article 6 provides: "The press and other mass media may not make public any information containing State secrets, a list of which shall be determined by the Council of Ministers. Propaganda for violence and war, advocacy of national, racial or religious hatred, propaganda in favour of prostitution, drug addiction and other punishable criminal offences, and untrue or unverified information, shall be prohibited. The secrecy of adoption shall not be infringed, and facts concerning intimate aspects of the life of citizens shall not be made public without their consent".
210. The right to receive information also includes the right to be informed about the enactment of new laws and other legislative acts. In this connection, article 6 of the Constitution provides that all laws shall take effect only after their official publication, while unpublished legal acts pertaining to human rights and obligations shall not have legal force.
212. The second paragraph of article 48 of the Constitution prohibits the exercise of rights and freedoms "for purposes of violent overthrow of the constitutional order, instigation of national, racial or religious hatred or propaganda for violence and war". Article 66 of the Criminal Code in force provides that "propaganda for war, in whatever form it may be conducted, shall be punished by deprivation of liberty for three to eight years with exile for two to five years, or without exile".
213. Under article 23 of the Constitution, "everyone is entitled to freedom of thought, conscience and religion. Freedom of religion and expression may only be restricted by law on grounds specified in article 45 of the Constitution". The basis for article 45, as well as for paragraph 14 of article 55, is martial law in the event of an imminent threat to the constitutional order.
214. Under article 69 of the Criminal Code in force, "propaganda or agitation with the object of fomenting racial or national hatred or hostility, direct or indirect restriction of the rights of citizens or the creation of direct or indirect advantages for citizens by reason of their racial or national origin, and premeditated acts aimed at the degradation of national honour and dignity shall be punished by deprivation of liberty for up to three years or a fine of up to 2,000 roubles (drams). If such acts are accompanied by violence, swindling or threats, or if they are committed by officials, they shall be punished by deprivation of liberty for up to five years or a fine of up to 5,000 roubles (drams). If acts of the nature referred to in parts I or II of this article are committed by a group of persons and if they entail loss of human life or other serious consequences, they shall be punished by deprivation of liberty for up to 10 years" (10 March 1990).
215. The right of peaceful assembly is provided by article 26 of the Constitution, which reads as follows: "Citizens shall have the right to gather peacefully, without arms, for the purpose of holding meetings, rallies, processions and demonstrations".
216. The right of association is proclaimed in article 25 of the Constitution, which provides that:
217. Armenian law divides public associations into public organizations (which also include trade unions) and political organizations (parties). The establishment of political parties and rules for joining them are governed by the Political Organizations Act adopted on 26 February 1991. Under this Act, a political organization is a voluntary association of citizens of the Republic of Armenia of voting age which has a single programme and statute and whose members can be elected to participate in the formation of organs of State power and the activities of such organs, as well as in the political, socio-economic and cultural life of the Republic.
218. The above-mentioned Act provides for restrictions on the right of certain persons to join a political organization. Thus, foreign nationals may not be members of an Armenian political organization, and neither may citizens who are employed in the Ministries of Internal Affairs and Justice, the National Security Committee, the Prosecutor's Office, the State Arbitration Commission, judicial organs and the customs service, or citizens serving in the armed forces during their period of service or employment (art. 2 of the Act). No similar restrictions are provided in respect of public organizations.
219. The Public Organizations Act adopted on 1 November 1996 sets out the rules governing the realization of the constitutional human right of free association. In particular, it regulates matters connected with the establishment of public organizations and leagues, their registration with the State and their reorganization, discontinuance of activities and disbanding, and sets forth the rights and obligations of public organizations. According to the Act, a public organization may be established by a decision of a constituent meeting called on the initiative of at least three individuals. A public organization must be registered with the Ministry of Justice and acquires the status of a legal entity from the moment of registration.
220. Public organizations can be established on the basis of community of interests of persons with the object of meeting spiritual or other non-material needs. More than 1,000 public organizations, including a number of trade unions, were registered in Armenia before the adoption of the Act, and they are pursuing their activities in accordance with the new Act. The legal basis for the establishment of trade unions is considered to be provided by the Code of Laws of the Armenian SSR, as amended over the past few years, and the Constitution of the Republic. An important step towards guaranteeing free and united activities of trade unions was the Presidential Decree of 25 January 1995 "On guaranteeing trade union activities under market economy conditions". Pending the enactment of new laws, this Decree upholds the rights of trade unions and provides guarantees for their successful activity. In Armenia, the forming and joining of trade unions by workers is not subject to any restrictions.
221. The Armenian Government has supported and encouraged the right of trade unions to join various international trade union organizations. For example, the Confederation of German Trade Unions, as well as various republican committees and councils of craft trade unions, are cooperating closely with the National Assembly and the Government of Armenia. Draft legislation on trade unions, on the signature of collective contracts and agreements, and on industrial strikes has been submitted to the National Assembly for its consideration.
222. Work is at present being completed on the draft of a new Labour Code which, by agreement with the International Labour Organization, will be submitted to that body for an expert opinion at the end of this year. The draft code will regulate in a detailed manner all issues connected with trade unions and trade union associations, as well as with questions pertaining to the establishment of employers' organizations.
223. The Confederation of Armenian Trade Unions has proposed to the Government the ratification of a number of International Labour Organization conventions, of which only the following six have been ratified by the Supreme Council:
Convention No. 98 Convention concerning the Application of the Principles of the Right to Organize and Collective Bargaining
Convention No. 100 Convention concerning Equal Remuneration for men and women workers for work of equal value
Convention No. 111 Convention concerning Discrimination in Respect of Employment and Occupation
Convention No. 122 Convention concerning Employment Policy
Convention No. 135 Convention concerning Protection of the Right to organize and procedures for determining conditions of employment in the public service
Convention No. 151 Convention concerning Protection and Facilities to be Afforded to Workers' Representatives in the Undertaking.
The Confederation of Armenian Trade Unions includes 26 national, 21 city and 210 district craft trade unions and committees and 8,749 primary trade union organizations totalling 916,825 members.
224. The third paragraph of article 29 of the Constitution provides that "citizens are entitled to strike in defence of their economic, social and work interests. The procedures and restrictions applicable to the exercise of this right shall be established by law". The procedure for the settlement of individual labour disputes is provided in the Labour Code currently in force. As for collective labour disputes, the right to settle them by so extreme a method as that of strike is established at the constitutional level for the first time in the history of Armenian law.
225. The Act "On the Settlement of Collective Labour Disputes" has not yet been adopted. A draft has been submitted for consideration by the National Assembly but its adoption is still pending. Under this draft (the "Strikes Act"), "cessation of work as a means of settling a collective labour dispute shall be prohibited in enterprises where an interruption of work represents a threat to the health and life of individuals". Article 11 of the Act provides, in particular, that cessation of work shall be prohibited in those subdivisions of the defence system which are directly engaged in the production of goods significant from the point of view of national defence, national law enforcement agencies, and security organs entrusted with defence duties. The workforces of the above organizations have the right to apply directly to the President in defence of their lawful rights and interests. The President must examine their requests and take an appropriate decision within a period of one month.
226. A new Marriage and Family Code is at present being drafted and will shortly be submitted for consideration to the National Assembly. Under the Code in force, the legal regulation of marriage and family relations is the exclusive responsibility of the State. Only marriages registered in State registry offices are recognized as valid. Church marriage, like other religious rites, has no significance in law. This rule does not apply to religious rites performed before the establishment or re-establishment of State registries during the Soviet period or to birth, marriage, divorce or death certificates obtained in consequence thereof.
227. Marriages of persons repatriated to the Armenian SSR or the Republic of Armenia which were performed abroad prior to their repatriation in accordance with religious rites or with the laws of their former place of residence, as well as marriage certificates issued to repatriated persons, were and are recognized in the Armenian SSR and the Republic of Armenia. Article 12 of the Marriage and Family Code provides that "registration of marriage shall be effected in the light of national and public interests as well as for the protection of the personal and property rights and interests of spouses and children. Only a marriage registered in a registry office shall entail rights and obligations for the spouses".
228. Article 13 reads: "Marriage takes place one month after the submission of an application to the registry office by the persons wishing to marry. This period may, for cogent reasons, be reduced or extended to three months".
Article 14 reads: "In order for the marriage to take place, the persons wishing to marry must express their mutual consent and must have reached marriageable age".
229. Article 15 reads: "The established marriageable age is 18 years for men and 17 years for women. Marriage cannot be contracted by persons even one of whom is already married, or persons directly related to each other in the ascending or descending line, between half-brothers and half-sisters having the same mother or father, between an adoptive parent and an adopted child, or between persons even one of whom is recognized by a court to be irresponsible for reasons of feeble-mindedness or mental illness".
230. Article 18 reads: "On contracting marriage the spouses shall freely choose the family name of one spouse as their joint surname, or else each spouse shall keep the family name he or she held before marriage. Questions of upbringing of children and other matters relating to family life shall be settled jointly by the spouses".
231. Article 19 reads: "Each of the spouses shall be free to choose his or her occupation, trade and place of residence. Spouses shall be obliged to give each other financial support", and Article 21: "A husband may not, without the wife's consent, initiate divorce proceedings during the wife's pregnancy or during the year following the birth of a child". Article 25 reads: "In the event of refusal of support, a spouse incapable of earning a living or a woman during pregnancy and for one and a half years after giving birth shall be entitled to receive maintenance through the court from the other spouse if he or she is able to provide such funds. This right shall not be affected by divorce".
232. Article 26 reads: "A divorced spouse of either sex who is in financial need shall be entitled to maintenance if he or she became incapacitated within the year following the divorce. If the spouses were married for a prolonged period, the court may also demand maintenance for a needy divorced spouse if that spouse has reached retirement age, but not later than five years after the divorce. A woman shall retain the right to receive maintenance during pregnancy and for one and a half years after the birth of the child if the pregnancy occurred before the divorce".
233. Article 27 reads: "If the marriage has lasted only a short time or if the spouse requesting maintenance has behaved in an improper manner, the court may deprive that spouse of the right to receive maintenance or limit that right to a specific period". A marriage between living spouses may be annulled by divorce upon application from one or both of the spouses. In adopting a decision in a divorce case, the court may, where necessary, take steps to protect the interests of minor children of the marriage or the interests of an incapacitated spouse. If the spouses fail to agree on which of them should provide a home for the children after the divorce and the amount of child maintenance to be paid, the court must, when adopting the decision on divorce, decide at the same time with which of the parents each child shall live and by which parent and in what amount child maintenance shall be paid.
234. Article 41 reads: "The spouse who has changed his or her name for that of the other spouse on contracting marriage may keep that name after divorce, or else the registration authorities shall, at the request of that spouse, restore the name held by him or her before marriage". A marriage contracted by a person below marriageable age may be considered invalid if the interests of the person below marriageable age so require.
235. Article 46 reads: "If by the time the case reaches the court the spouse who was a minor has reached marriageable age, the marriage shall be considered invalid only upon the request of that spouse"; Article 51: "The reciprocal rights and obligations of parents and children shall be founded upon the fact of conception of the child as established according to law"; Article 62: "The father and the mother shall have equal rights and obligations in respect of their children. They shall continue to have equal rights and equal obligations also after divorce".
236. Article 64 reads: "Where parents live separately because of divorce or for other reasons, the question of which of them should provide a home for their minor children shall be settled by mutual agreement. If the parents fail to agree, the question shall be settled by the court on the basis of the interests of the children".
237. Article 65 reads: "All matters relating to the upbringing of children shall be settled by the parents by mutual agreement. If the parents fail to agree, the disputed matter shall be settled by an organ of guardianship and tutorship; in the event of a dispute, the decision shall be taken by the court". The parent living separately from the child has the right to see the child and must participate in its upbringing. Organs of guardianship and tutorship are entitled to deprive the parent living separately from the child of the right to see the child for a certain period if the exercise of this right interferes with the child's normal upbringing and has a harmful effect upon it. The parents or one of the parents may be deprived of parental rights if it is confirmed that they are evading their responsibility to participate in the child's upbringing, if they abuse their parental rights or treat the children in a cruel manner, if their immoral and anti-social behaviour is having a harmful effect on the children, or if they are chronic alcoholics or drug addicts. Parents may be deprived of parental rights only by a court order and only in the cases specified above (art. 68).
238. Article 70 reads: "Deprivation of parental rights shall not release parents from the obligation to maintain their children". The court may decide to remove a child from its parents and place it under the control of organs of guardianship and tutorship, whether or not the parents have been deprived of parental rights, if remaining with them represents a danger to the child. If these grounds no longer obtain, the court may rule in the light of the interests of the child and in response to a request by the prosecutor or the parents that the child be returned to the parents (art. 75). Under article 77, "parents shall be obliged to maintain their minor children and incapacitated major children who are in need of assistance. To this end, parents shall be required to pay child maintenance in the amounts specified in article 78".
239. Article 4 of the Rights of the Child Act provides as follows: "Children shall have equal rights irrespective of nationality, race, sex, language, religion, social origin, property or other status, education, place of residence, the circumstances of birth of the child, or the state of health of the parents, the child itself or other legal representatives (adoptive parents, guardians or tutors)".
240. The fact that a child was conceived in wedlock is established by the parents' marriage certificate (art. 52 of the Marriage and Family Code). Conception out of wedlock is established by a joint declaration submitted to a registry office by the mother and father (art. 53 of the Marriage and Family Code). Where the child is born out of wedlock, paternity may, in the absence of a joint declaration, be established by a court order on the basis of a declaration by one of the parents, a tutor or a person appointed to act as the child's guardian, or else on the basis of a declaration by the child itself once it has reached the age of majority (Marriage and Family Code, art. 53). Upon the establishment of paternity, children born out of wedlock acquire the same rights and obligations vis-à-vis the parents and their relatives as children born in wedlock (Marriage and Family Code, art. 54). Where a child is born of an unmarried mother, in the absence of a joint declaration by the parents and of a court order on paternity, the child shall be registered in the mother's name, the father's family name and patronymic being registered according to information supplied by the mother (art. 57).
241. Article 8 of the Rights of the Child Act reads: "Every child shall have the right to the conditions of life necessary for its physical, mental and spiritual development. The main responsibility for providing the child with the necessary conditions of life shall be incumbent upon its parents or other legal representatives. Where the parents or other legal representatives are unable or unwilling to provide the child with the necessary conditions of life, appropriate assistance shall be provided by the State". Article 12 reads: "Every child shall have the right to be recognized by its parents and to live with them, except in cases established by Armenian law where a court rules that the separation of the child from its parent or parents is necessary in the interests of the child. The State and its relevant organs shall work towards the reunification of the family".
242. Article 13: "The child shall be cared for and brought up principally within the family, the responsibility for this being incumbent upon the parents or other legal representatives as well as organs empowered by the State. They shall create the conditions necessary for the child's full development, upbringing and education, the maintenance of its health, and its preparation for independent life within the family and society". With a view to ensuring the child's care and upbringing within the family, the State and its relevant organs must assist the parents or other legal representatives in ensuring the child's well-being and encourage the activities of psychological, pedagogical and advisory services in support of the family.
243. Article 14 of the Act is entitled "Protection of the child's rights and legitimate interests by the parents". Protection of the child's rights and legitimate interests is one of the fundamental duties of the parents or other legal representatives. If a child violates the law, the liability falls upon the parents or other legal representatives in accordance with the procedure established by the Civil Code. Article 16 provides for the following privileges being granted by the State: "A child who is a double orphan shall be provided with housing out of his or her regular turn in accordance with the procedure established by law".
244. Under article 19, "a work contract may be concluded with a child upon its reaching the age of 16 years, or in exceptional cases 15 years. A child shall have the right to advantageous working conditions, as provided by law. Selling alcoholic beverages and tobacco to children, or involving children in their production and consumption, shall be prohibited, as also shall employing children for work that may harm their health or physical or mental development or stand in the way of their education". Article 22 bestows upon the child the right to protect his or her honour and dignity. Article 23 is entitled "Protection of the security of the child". Illegal migration (including migration to other countries) involving a child, kidnapping, and selling or buying a child shall entail criminal liability in accordance with the law. Work is currently in progress on mechanisms for the implementation of the Act's provisions in the Republic.
246. Article 3 of the Constitution provides that referendums shall be held on the basis of the right of equal and direct suffrage by secret ballot. Under the law, those who may participate in a referendum are citizens who had attained the age of 18 years on the date of the referendum or earlier and were permanently resident in Armenia on the date of the decision to hold the referendum. Transparency (glasnost) and the participation of the public at large must be guaranteed during the holding of the referendum.
247. Since the adoption of the Declaration of Independence of Armenia, two referendums have been held in the territory of the Republic, the first in 1991 on the decision to secede from the USSR and the second in 1995 on the adoption of the new Constitution. On both occasions the referendum was conducted under conditions of transparency (glasnost) and with the participation of independent foreign observers.
248. The Constitution provides for the holding of the following types of elections:
(a) Presidential elections
(b) Elections of deputies to the National Assembly
(c) Elections to local government bodies (mayor, alderman, etc.)
Matters pertaining to the holding of these three types of elections are regulated by three distinct electoral laws. Under article 3 of the Constitution, all elections must be held by secret ballot on the basis of universal, equal and direct electoral rights.
249. The lawfulness of the holding of referendums and elections is monitored by the Constitutional Court, which is empowered by article 100 of the Constitution to settle disputes arising in connection with the results of referendums and presidential and parliamentary elections. Election results may be appealed in the Constitutional Court by the presidential and parliamentary candidates concerned. The decisions of the Constitutional Court are final. They are not subject to review and enter into force immediately upon publication.
250. Presidential elections were held in Armenia not long ago (on 22 September 1996), with the Council of the International Assembly of CIS and representatives of Georgian non-governmental organizations, the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe and other international organizations attending as observers. Two presidential candidates who considered that in the run-up to and during the actual holding of the election the right to universal, equal and direct elections by secret ballot had been infringed in a manner which affected the final result of the election challenged the election results by appealing to the Constitutional Court. The Constitutional Court gave detailed consideration to the case, transparency being preserved throughout the hearings, which were conducted in the presence of the public, the press and representatives of other media. The Court ruled that while infringements of the electoral law had occurred during the election, consideration of the case and the necessary verifications had shown that those infringements had not affected the final election result. A draft State Officials Act which will regulate matters pertaining to citizens entering the public service is currently in preparation.
251. As stated earlier in connection with articles 2 and 3 of the Covenant, article 15 of the Constitution provides that: "Citizens irrespective of nationality, race, sex, language, creed, political or other views, social origin and property or other status shall enjoy all the rights, freedoms and obligations established by the Constitution and the laws". Equal possibilities of enjoyment of rights are discussed in connection with articles 14, 12 and 25 of the Covenant, as well as in the Republic of Armenia's report on the subject of elimination of all forms of discrimination against women.
252. Peaceful coexistence of various national, ethnic or religious groups forms the basis of a country's well-being. Conversely, where violations of minority rights occur, there is violation of human rights in general. But minorities can only acquire minority status if their ethnic, linguistic or religious features are preserved. It is therefore particularly important for a newly independent State to embark upon a legislative process which, on the one hand, will make it possible to create additional rights and special mechanisms for the protection of persons belonging to minorities and, on the other hand, will help to fulfil the obligations which the country has assumed by becoming a party to various international instruments.
253. Thus, for example, in addition to this Convention, Armenia has ratified the following instruments relating to minority rights:
1. International Covenant on Economic, Social and Cultural Rights;
2. Convention on the Prevention and Punishment of the Crime of Genocide;
3. Convention on the Elimination of All Forms of Racial Discrimination.
254. The Constitution of 5 July 1995 not only proclaims the equality of citizens before the law and the courts, but also guarantees the right of citizens belonging to national minorities to the preservation of their traditions and the development of their language and culture (art. 37). Every person who is (a) a citizen of the Republic of Armenia and (b) not an Armenian by nationality is entitled to enjoy the rights of national minorities. The last-mentioned criterion is a formality, since everyone is free to determine his own nationality without any outside interference.
255. As everyone knows, the realization of the right to the preservation of traditions and the development of language and culture becomes far more meaningful in the case of national minorities of a certain size. In Armenia, national minorities account for 3 per cent of the total population. They consist of Jews, Russians, Ukrainians, Poles, Greeks, Assyrians, Kurds and Yezidis (for more details see the core document (HRI/CORE/1/Add.57)).
256. A number of large and small associations of national minorities are formally registered and active in Armenia at the present time. The best known among them, the Union of Nationalities of Armenia, was founded in December 1994. Its main goal is to help to deal with the cultural, economic and other tasks of Armenia's national minorities with a view to the best possible utilization of their potential in Armenian public life. It is the State's policy to encourage such organizations. This attitude has its roots in history. Relations between national minorities living in Armenia, on the one hand, and Armenians on the other have always been cordially fraternal. The rights of minorities were never restricted. Thanks to the adoption of the Constitution, compactly settled national minorities have obtained additional possibilities of setting up their own organs of local government - village communes - in rural areas.
257. Further evidence of the adoption of new criteria in connection with minorities is the Commonwealth of Independent States Convention on the rights of persons belonging to national minorities, designed to assist the protection of minorities in the territories of CIS member countries, which Armenia ratified on 11 October 1995.