Human Rights Defender of the Republic of Armenia

Submission of the Human Rights Defender of the Republic of Armenia to the UN Committee against Torture 59th session on the Forth Periodic Report of Armenia on compliance with the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

November 2016

(submitted in October, 2016)

Human Rights Defender Office of the Republic ofArmenia:

56A Pushkin str., Yerevan, Armenia, Tel: (+37410) 53 92 46

INTRODUCTION

  1. The Institution of the Human Rights Defender of the Republic of Armenia (hereinafter referred to as the HRDI) was established by the Law of the Republic of Armenia on Human Rights Defender (hereinafter referred to as HRD Law) adopted on 21 October 2003 and entered into force on 1 January 2004. The role and functions of the Human Rights Defender (hereinafter referred to as the Defender) are established in Chapter 10 of the Constitution of the Republic of Armenia, Article 52 of which prescribes the right of everyone to apply the Defender for assistance.
  2. According to Article 191 of the Constitutionof the Republic of Armeniathe Human Rights Defender is an independent official, who shall follow the respect for human rights and freedoms by state and local self-government bodies and officials and in cases stipulated by the Law by organizations, and shall facilitate the restoration of violated rights and the improvement of the legislation related to human rights and freedoms.
  3. The Defender shall submitan annual report to the National Assembly on his activities and on the situation of protection of human rights and freedoms. The report may contain recommendations on legislative changes or other measures. State and local self-government bodies and officials shall be obliged to provide the necessary documents, information, and clarifications to and support the work of the Defender according to the procedure prescribed by law.
  4. According to Article 2 of the HRD Law the Defender is an independent and unaltered official, who, guided by the fundamental principles of lawfulness, social co-existence and social justice, protects the human rights and fundamental freedoms violated by the state and local self-governing bodies or their officials. The wording of Article 2 of the HRD Law implies that the competence of the Defender extends to all the state, local self-governing bodies as well as their officials without any exception. When executing his powers, the Defender is guided not only by national legislation but also by norms and principles of international law: as a result, he can directly cite norms prescribed in international documents and well-recognized principles of international law.
  5. The HRD Law provides the Defender with certain authorities to accomplish above mentioned functions. According to Articles 8 and 12 of the HRD Law, the Defender is authorized to:
  • have free access to any state institution or organization, including military units, prisons, preliminary detention facilities and penitentiaries;
  • require and receive information and documents related to the complaint from any state or local self-governing body or their officials;
  • receive from the state or local self-governing bodies or their officials, with the exception of Courts and judges, information clarifying the issues that arise in the process of examination of the complaint;
  • instruct relevant state agencies to carry out expert examinations and prepare findings on the issues subject to clarification during investigation of the complaint;
  • have guaranteed confidential, separate, unrestricted communication with persons in military units, under preliminary detention or serving their sentence in penitentiaries, as well as persons in other places of coercive detention;
  • in exercising his powers, the Defender shall enjoy the right of urgent reception by state and local self-governing bodies and their officials as well as by top management of organizations and other officials and coercive detention facilities.
  1. In 2006 the HRDI of Armenia wasaccredited by the International Coordinating Committee of National Human Rights Institutions(ICC) with 'A status', meaning its full compliance with the Paris Principles[1].
  2. The Optional Protocol to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed by the National Assembly of the Republic of Armenia on 31 May 2006) envisages the creation of an independent National Prevention Mechanisms (hereinafter referred to as the NPM) endowed with broad powers and guarantees to have free access to and conduct visits to all places of detention.
  3. Accordingly, in 2008 the HRD Law was added with Article 6.1 thatrecognizes the Defender as a National Preventive Mechanism. Within this capacity a specific unit called Department for the Prevention of Torture and Ill-treatment within the HRDI is established[2].
  4. On 28 September 2016 an Expert Council on Prevention of Torture adjunct to the Defender has been established with the new list of members by a special decree of the Defender. The Council is comprised of independent experts, as well as experienced representatives of NGOs in the field of prevention of torture and ill-treatment (sociologist, psychologist, doctor, etc.).
  5. The aim of the Expert Council is to reveal problems concerning the conditions of detention in the places of deprivation of liberty and to provide the solutions, including analyzing them in the context of relevant legislative acts. The main function of the Expert Council is to monitor places of deprivation of liberty, as well as to assist the Defender in revealing systemic problems of the penitentiary system and provide recommendations to the Defender aimed at their solution.
  6. Since legislative changes of 2008 no specific details on the functioning of the Defender as NPM were added to the Law. Moreover, the necessity of such regulations was highlighted in thereport of the United Nations Subcommittee on Prevention of Torture (hereinafter referred to as the SPT) of 15 October 2014. On 3-6 September 2013 the SPT conducted a visit to the Republic of Armenia and provided recommendations regarding the NPM activities. In its report, SPT expressed highest concern regarding the institutional format of the NPM, suggesting to specify its due considerations of the principles relating to the status of national institutions for the promotion and protection of human rights. SPT has also emphasized the obligation of Armenia to provide the opportunity for NPM to organize the frequency and format of the visits. SPT has also mentioned that Armenia is obliged to allocate necessary resources, which presume the existence of the sufficient number of staff and guarantee their independence. The same considerations were highlighted in the SPT report based on avisit of 2015 as well.
  7. As established bythe Constitutional amendments of 6 December 2015,a draft Constitutional Law on HRD has been developed and submitted to the National Assembly. Public discussions on the draft laware already scheduled (the first discussion will be held on 25 October 2016). International experience and the best practices of the NPMs were considered to comply the HRD Draft Law with the above recomendations of SPT.Specific provisions have been inserted thatregulatemandate of the Defender as NPM.
  8. Another important aim of the HRD Draft Law is to enlarge the HRDI’s financial resources to make sure that it has an opportunity to remunerate the experts of NPM. Currently they conduct visits voluntarily with no possibility to covercosts and expenses related to their monitoring activities.
  9. The draft law on Human Rights Defender has already been submitted to the Council of Europe Venice Commission for their opinion.
  10. In the light of the above mentioned mandate the Defender has decided to provide the UN Committee against Torture with his observations on application of UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) by Armenia based on investigation of the complaints filed with the HRDI and monitoring as well asanalyzing the situation in the field, particularly through visits to places of detention.

SPECIFIC INFORMATION ON THE IMPLEMENTATION OF ARTICLES 1 AND 4 OF THE CONVENTION

  1. It is worth to mention that steps were taken by the state to bring the national legislation in conformity with the requirements of Article 1 of the Convention. In particular, on 9 June 2015 Article 309.1 of the Criminal Code of Republic of Armenia was adopted criminalizing torture committed by public officials punishable with high penalty. This definition is in compliance with above mentioned article of the Convention.
  2. Nevertheless, the overall situation in terms of practical implementation of anti-torture criminal legislation needs further improvement. According to the information received from Special Investigation Service of the Republic of Armenia (hereinafter referred to as the SIS) 18 criminal proceedings were initiated based on Article 309.1 from 9 June 2015 to September 2016. According to this information, 8 decisions have been made on dismissal of criminal proceedings, 2 decisions on rejecting criminal proceedings have beentaken and criminal proceedings are currently in the process of investigation only in 8 cases.
  3. Moreover, Article 309.1 is subject to the statute of limitations which is in contradiction with the standards of the Committee against Torture General Comment No. 3. It stipulates that on account of the continuous nature of the effects of torture, statutes of limitations should not be applicable as this deprives victims of the redress, compensation, and rehabilitation due to them.

SPECIFIC INFORMATION ON THE IMPLEMENTATION OF ARTICLE 2 OF THE CONVENTION

Cooperation of HRDI withmain stakeholders

  1. TheHRDI is executing its mandate in cooperation with relevant authorities, international bodiesand NGOs in the field. The Defender undertakes an active role in the execution of European Court of Human Rights’ (hereinafter referred to as ECtHR) judgments following the provisions of the Brussels Declaration on the implementation of the European Convention on Human Rights of 27 March 2015.In this regard high-level meetings of Defender with the Department for the Execution of Judgments of ECtHR/ Committee of Ministers of the Council of Europe are scheduled in Strasbourgin December.
  2. Within the cooperation of HRDI with OSCE a special project has been designed to support and promote activities of the Defender.A series of thematic TV programs will be broadcasted on a channel with a republican coverage in order to raise public awareness on the role and activities of the HRDI. The second component of the project aims to conduct a comprehensive analysis on health care services in penitentiary institutions.
  3. Being entrusted with the protection of child rights, the HRDI actively cooperates with relevant stakeholders on this matter as well. Especially, it is worth mentioning that within 2015 the United Nations Children's Fund (UNICEF) and the Ministry of Justice (hereinafter referred to as MoJ) initiated a new project which is focused on the establishment of juvenile justice system. The main objectives of the project are the analyzing of the existing legislation, capacity building of the investigation officers who deal with juveniles, and establishingthe Commition that will coordinate the juvinile justice system. The HRDI is actively involved in the project and among other stakeholders is also engaged in the above mentioned Commition.
  4. Highly valuingthe role of legal education,the HRDI signed a memorandum of understanding on cooperation with the Chamber of Advocateswhich aims among other purposes to organize trainings for the advocates by the HRDI staff.Furthermore, it is planning to sign memorandums of understanding with Law Department of the Yerevan State University and Academy of Justice as well.
  5. In order to enhance the cooperation with national authorities, the HRD Draft Law prescribes that the Defender may have its representatives in the National Assembly and the Constitutional Court of the Republic of Armenia.The aim of this new provision is to strenghten institutional ties of the Defender with the mentioned institutions.
  6. In 2015 members of the Department for the Prevention of Ill-treatment and Torture conducted several meetings with representatives of the Penitentiary Service of the MoJ. The conditions in which persons deprivedof liberty are kept, health care services, other important issues connected with their rights have been discussed during the meetings. Several meetings have been conducted with representatives of the Police of the Republic of Armenia. Within the meetings material conditions of detained persons, hygiene, the quality of food and health services have been discussed. The necessity to raise awareness of prisoners on their rights and obligations has been noted as well. Series of trainings on “torture and other cruel, inhuman or degrading treatment” for penitentiary officers have been conducted by the medical specialist of the Department for the Prevention of Ill-treatment and Torture of HRDI upon the request of the Penitentiary Service of MoJ. However, there have been certain issues regarding the implementation of the recommendations. As an example, HRDI periodically highlighted the appropriate health care of persons deprived of their liberty which is not yet solved and remains in the agenda.
  7. In regards with the HRDI’s cooperation with different national and international NGOs several examples of successful partnership will be described later in this document.

National Strategy for the protection of Human Rights

  1. Within the scope of competence and authority given by the law the Defender has closely followed up the Action Plan accompanying the National Strategy for the Protection of Human Rights. Every year in annual reports the Defender’s special attention has been given to implementation of the actions which deadline is fixed for the reporting year and follow up recommendations were made in order to ensure effective implementation of these actions.
  2. It is worth mentioning that in 2013 by the directive of the President of the Republic of Armenia (N ՆԿ-16-Ն) a Monitoring Council comprised of representatives of respective state bodies (the Defender also had a representative) was established.The Chairman of the Committee of National Security was appointed as the Council’s Secretary. The main purpose of this Council has been to monitor the results and summary of the comments and recommendations thereon. However, since its creation the Council has not properly functioned it did not manage to conduct the above mentioned tasks. Firstly, no meetings were held because the Committee of the National Security did not have a Chairman till 2016 and secondly no follow up reports or analysis have been conducted either. Last but not least, because of unclear formulations of activities and results in the Action Plan, it has been especially hard to assess whether a specific action considered beingcomplete or not. Many activities are general rather than practical and because of this some remained not implemented. Hence, we believe that the new action plan should be more concrete and should have detailed assessment tools.

Independence of the judiciary system

  1. In 2015 for the sake of protection of the right to a fair trial the Defender has sent 32 applications to the Committee on Ethics and Disciplinary Matters in order to initiate disciplinary proceedings against judges,none of which, however, constituted a basis for initiating disciplinary proceedings towards a judge. Decisions of the Ethics and Disciplinary Committee did not have detailedscriptures and have mainly had the same content, which was also mentioned in the Annual report of the Defender.

Domestic violence

  1. According to the information provided by the Police of the Republic of Armenia in 2015 784 cases of domestic violence have been registered, however in 634 of them criminal proceedings were not initiated.
  2. Analysis of the number of cases and number of criminal proceedings regarding them proves that not in all cases it has been possible to describe the act of a crime as stipulated by the Criminal Code of the Republic of Armenia and hence, properly investigate allegations of domestic violence. Considering particularities of domestic violence in many cases (such as abuse of the material dependence, periodic threats, one slap etc.) investigative services were not able to qualify a specific act as a crime because of absence of specific article in the Criminal Code. For this reason, neither the Police nor any other state body does have a clear and accurate data on domestic violence cases. In this regard, it should be noted that the lack of official statistics makes it difficult to effectively combat against domestic violence.
  3. Even though the registered cases of domestic violence mentioned above are lower than the ones registered in 2014 (678 cases), however according to local NGOs, the number of cases of domestic violence has increased. As it is mentioned in the information published by the Coalition to Stop Violence against Women[3], there are 2000 cases of domestic violence registered in Armenia per year. Moreover, from 2013 till 2015 three NGOs have received 5171 primary calls to their hotlines reporting domestic violence and during the same period they have recorded 30 cases of death as a result of domestic violence[4].
  4. There is no adequate protection and redress for victims of domestic violence provided by the state authorities. Definition of domestic violence is given in the Law on Social Support (Article 2) which has been adopted in 2014, where the state has a responsibility to provide shelters of victims of domestic violence for up to 12 months (Article 12). According to the same law (Article 12), procedures of providing shelters and conditions were established by the Government of Armenia. However, it should be noted that up to October 2016 no state funded shelters have been operated.
  5. There is a focal point on women’s issues within the HRDI who cooperates with all the structural subdivisions of it, taking into consideration the peculiarity of each complaint and alarm. In 2015 more than 30 complaints and calls were received on domestic violence, vast majority of which were anonymous. On the basis of the reports, the women were provided with advice on their rights. The focal point on women’s issues cooperates with NGOs which provide victims of domestic violence with shelters, in order to direct them to the NGOs in cases when the mandate of the Defender does not allow interference. Cooperation is established also with public authorities (mainly Investigative Committee, Police and Guardianship/Trusteeship Commissions of the Republic of Armenia) in order to ensure necessary protection for the victims and effective investigation of cases referred to the authorities.
  6. It should be noted that many women feel safer to refer their cases to the NGOs rater then Police or other state authorities. As a result, such cases are underreported. Women often mention that because of shame and lack of trust towards Police and absence of protection possibilities provided by state bodies they prefer not to report cases.
  7. The Financial Agreement of the Budget Support Program on Protection of Human Rights contains the provisions concerning to the torture prevention. According to this Agreement, Armenia should adopt standalone legislation on domestic violence in line with UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) General recommendation No. 19 and with Council of Europe Convention on preventing and combating violence against women and domestic violence (hereinafter referred as to Istanbul Convention) in 2016. However, as of 2016 October the draft law has not been circulated and presented for the public hearings yet, which raise concern whether it will be possible to have the legislation in accordance with the budget support timeline.
  8. Another issue that should be highlighted is that signing of the Istanbul Convention is anticipated in 2017. It is very keen to have the Law on Domestic Violencein accordance with the mentioned convention.
  9. It is worth mentioning that in cooperation withthe Council of Europe the HRDI is developing a domestic violence prevention program. Within the framework of the program the compliance of Armenian legislation with Istanbul Convention is planned to be examined. Examination will be performed based on legal analysis of Criminal Code of Armenia, as well as case law regarding domestic violence. A number of meetings and interviews will be organized with NGO representatives, police officers, prosecutors and judges in order to scrutinize practical issues. Best international practices will also be considered within the program including the information obtained through the study visit to Georgia, were meetings will be held with the Georgian Public Defender’s Office representatives.The program and the research conducted through it will contribute to the adoption process of the domestic violence lawin Armenia as well ratification of the Istanbul Convention.

Investigation of the events, occurred on 1 March 2008