HAK REFORM PROPOSALS

  • Politics - 16 March 2010, 19:07
H.E. Mr. Thorbjørn Jagland The Secretary General Council of Europe
Yerevan, March 16, 2010
 
Dear Mr. Jagland,
 
First I would like to thank you on behalf of the Armenian National Congress for you letter in response to the petition we had delivered to the office of the Council of Europe in Yerevan on December 10.  We are encouraged to see that Armenia’s situation has not left the Council’s radar screen and that it remains committed to the implementation of the resolutions adopted by the PACE following the fraudulent presidential elections in 2008.
 
As you probably know, the Monitoring Committee will be discussing the timetable of reforms to be presented by the Armenian authorities in response to the concerns raised both in the aforementioned resolutions and the statement issued by the PACE co-rapporteurs on Armenia Mr. Georges Colombier and Mr. John Prescott.  With this letter we are presenting to you the list and a timetable of reforms prepared by the Armenian National Congress, which we have also presented to the Monitoring Committee and the co-rapporteurs.  We hope you will exercise the institutional capacity of your office, as well as your personal influence, to make sure that it becomes a part of the discussion during the 17 March session of the Monitoring Committee.
 
The implementation of the reforms listed in our proposal remains an urgent necessity, because Armenia remains a country in political crisis two years after the ill-fated elections of 19 February, 2008.  This is not just our opinion, but also that of the US State Department, which said as much in its recent human rights report, and of the ODIHR of OSCE, which criticized the performance of Armenia’s justice system, and particularly its handling of the politically motivated persecution of the opposition activists over the last two years.  The implementation of those reforms is also a matter of urgent necessity, because the existing flaws in our political and judicial systems is a source of continued hardship and injustice, which ordinary Armenians have to endure on a daily basis.
 
Sincerely yours,
Levon Ter-Petrossian
 
The following reform proposals by the Armenian National Congress are intended to contribute to the process of overcoming the political crisis in Armenia, which was triggered by the falsified presidential elections on 19 February, 2008, and the subsequent crackdown on 1 March, which resulted in the deaths of 10 innocent people.
 
The reforms we propose go hand in hand with the recommendations contained in successive PACE resolutions following the presidential elections and the 1 March crackdown.  They also take into account the conclusions of the recent report by the PACE co-rapporteurs on the investigation of the 1 March events.  We concur with most of the recommendations contained in the resolutions, as well as the analysis in the co-rapporters’ report.  We also welcome the co-rapporteurs’ request that the Armenian authorities present a timetable of the steps they are planning to take to comply with the PACE resolutions.   The only exception we take has to do with the co-rapporteurs’ recommendation that the same ad hoc commission of the Armenian National Assembly, the objectivity of which they have questioned, continue its investigation.  There is a clear dissonance in the report between the recognition of the commission’s biased nature and the recommendation that it nonetheless continue its work.  The proposed adjustment to the process in the report, which is the involvement of the Human Right’s Ombudsman’s office in the investigation, cannot be considered a sufficient remedy to the problem, because the latter is subject to all sorts of political pressures as evidenced by the performance of its representative in the now defunct Fact-Finding Group.
 
What follows is the list of changes we believe must be enacted if the already two-year old crisis in Armenia is to be diffused.  The proposals below will reflect not only our thinking on what steps must be taken, but also the recommendations made in the aforementioned PACE documents.  The list will also contain what we think is a reasonable timetable of implementation.  If the authorities consider our timetable less than realistic, they can propose an alternative timetable, but they will need to explain why exactly the steps listed below cannot be taken in the timeframe we have proposed.
 
1.     Immediate Release of Political Prisoners.
 
The presence of over a dozen political prisoners in Armenia remains the single most important obstacle preventing a dialogue between the authorities and the society, and the normalization of the political situation in the country.  That there are people in Armenia’s prisons, who have been imprisoned for nothing more than exercising their constitutional rights, has long stopped being a matter of dispute for reasonable and unbiased observers.  What is also not a matter of dispute is the importance that the release of political prisoners will have for setting Armenia on the path to political normalization.  Below are the relevant excerpts from two PACE resolutions confirming that claim:
According to the article 12.2 of Resolution 1609, “ the persons detained on seemingly artificial and politically motivated charges or who did not personally commit any violent acts or serious offences in connection with them should be released as a matter of urgency.”
According to article 4 of Resolution 1677, “In the view of the Assembly, the release of all persons deprived of their liberty in relation to the events of 1 and 2 March 2008 who did not personally commit grave acts of violence would alone provide the necessary basis for the start of the dialogue and reconsolidation that is needed to overcome the political crisis that ensued after the presidential election of February 2008. In addition, their release would meet the concerns and demands of the Assembly in this respect.”
 
2.     Creation of an Independent Commission to Investigate the Events of 1 March, 2008.
 
The credible and impartial investigation of the events of 1 March, 2008, remains the second most important requirement for the normalization of the political atmosphere in the country.  The ad hoc commission of the Armenian National Assembly, which was tasked with such an investigation, has predictably failed in producing a credible report, because it was staffed exclusively with the representatives or the supporters of the regime.  Its task indeed was not the investigation of the crime that was committed on that fateful day, but its cover-up, which it did dutifully, even if not very skillfully.  It is clear that any credible commission has to have a balanced composition, which will prevent the political allegiances of its members from determining the outcome.  That, however, is not sufficient, because in such a setting, the representatives of different political forces will have a difficulties working together and refraining from acting on political motives, as the representatives of the regime did in the Fact-Finding Group.  Being cognizant of this danger, the Armenian National Congress has always insisted that a credible commission must include independent international experts, who could in effect act as umpires in the disputes between the experts representing the different political forces. We see no reason why such a commission, which along with the international experts will include representatives of the Armenian National Congress, the authorities, and the parliamentary opposition, cannot be created. 
 
The importance of the impartial investigation of the events of 1 March, 2008, is emphasized in the following statements of PACE Resolution 1677:
Article 8.2: “[The Assembly] considers that an independent, impartial and credible investigation into the events of 1 and 2 March and their circumstances, is still necessary, in line with the criteria outlined by the Assembly, notwithstanding the breakdown of the fact-finding group, and therefore considers that the final report by the Ad hoc Parliamentary Inquiry Committee will determine whether the criteria of impartiality and credibility have been met and whether further investigations are necessary.”
Article 9: “The Assembly is seriously concerned about the fact that the investigation by the Prosecutor General into the 10 deaths that occurred has not yet led to any concrete results and considers it essential that this investigation be satisfactorily concluded without any further delay. In this respect, it welcomes the decision of the President of Armenia to ask the Prosecutor General to provide a full report of his investigations for review by the Ad Hoc Parliamentary Inquiry Committee.”
 
Time-frame: We think no more than a month will be required for the creation of the new commission from the time of the decision.  If the authorities do want an investigation, they can agree to its creation immediately, and have the group begin its work by the end of April, 2010.
 
3.     Removal of the Artificial Obstacles Preventing the Return of the Independent Television Channel A1+ to the Air. 
 
The state of the electronic media in Armenia, which has long been a matter of significant concern both in and outside of Armenia, remains abysmal.  No steps whatsoever have been taken in response to the criticisms and toward the fulfillment of the requirements of several PACE resolutions cited here.
Article 6.5 of Resolution 1609: “Even though there is a pluralistic and independent print media, the current level of control by the authorities of the electronic media and their regulatory bodies, as well as the absence of a truly independent and pluralist public broadcaster, impede the creation of a pluralistic media environment and further exacerbate the lack of public trust in the political system.”
Article 8.3 of Resolution 1609: “The independence from any political interest of both the National Television and Radio Commission and the Public Television and Radio Council must be guaranteed. In addition, the composition of these bodies should be revised in order to ensure that they are truly representative of Armenian society. The recommendations made by the Venice Commission and Council of Europe experts in this respect must finally be taken into account. The Assembly reiterates that, apart from reforming the legislation, the authorities must take steps to ensure freedom and pluralism of public television and radio on a daily basis. Also, the harassment by the tax authorities of opposition electronic and printed media outlets must be stopped.”
Article 12 of Resolution 1677: “As to the holding of an open, fair and transparent tender for broadcasting licenses, the Assembly notes the ongoing discussions between the Armenian authorities and the Council of Europe on the basis of a report prepared by an independent spectrum analyst. It reaffirms its position that the technical implications of the introduction of digital broadcasting in Armenia should not be used to delay unduly the holding of such a tender and thus the execution of the judgment of the European Court of Human Rights in the case concerning the denial of a broadcasting license to the television channel A1+.”
 
The Armenian authorities must take three steps toward the fulfillment of these requirements and in order to guarantee a minimal degree of pluralism in the electronic media:
a)     Fully comply with the judgment of the European Court on A1+;
b)     Conduct an international audit on the availability of frequencies;
c)     On the basis of the results of the audit, conduct new tenders.
Time-Frame: The first tender can be held in May, 2010.
 
4.     Reform of the Electoral System
 
The electoral system of Armenia suffers from a number of shortcomings.  Not all of the irregularities that routinely accompany the elections in Armenia are the result of the defects of the existing laws, for even with the existing laws credible elections can be held.  But the quality of the elections can be improved by introducing new legislation.[1]  The shortcomings of the electoral system of Armenia, as well as the urgent need to reform it, have been pointed out in several of the PACE resolutions.  Below are specific articles in those resolutions dealing with that problem:
Article 6.2 of Resolution 1609: “The lack of public trust in the electoral process also generally undermines the credibility of the outcome of the elections in the eyes of part of the Armenian population. This is further compounded by the lack of impartiality of the election administration, the ineffective handling of election complaints and appeals and the lack of transparency of the vote count and tabulation procedures.”
Article 8.2 of Resolution 1609: “The electoral process needs to be thoroughly reformed with a view to ensuring in particular: an impartial election administration that is free from control by any single political force; a fully transparent administration of the election process especially with regard to the vote count and tabulation process, as well as a complaints and appeals process that gives electoral stakeholders the fullest possible access to a legal remedy in case of perceived electoral violations and an equal playing field guaranteed in practice for all political forces both during the official campaign period and also prior to it;”
Article 13 of Resolution 1677: “With regard to the election of the Yerevan City Council on 31 May 2009, the Assembly notes the conclusions of the observer mission of the Congress of Local and Regional Authorities of the Council of Europe. However, the numerous allegations that fraud and violations were widespread during these elections demonstrate that public trust in the electoral process is still very low in Armenia. This, as well as the shortcomings and violations noted, underscores the fact that electoral reform should now be a priority for the authorities. Further electoral reforms are needed, therefore, in particular with a view to strengthening post-election control mechanisms for the disclosure of voting irregularities, including, but not limited to, multiple voting practices.”
Time-frame: The necessary legislative proposals can be submitted to the agenda of the National Assembly immediately with a view of passing them by the end of May, 2010.
 
5.     Freedom of Assembly
 
Like with the problems with elections, the violations of this most basic of constitutional rights are not solely due to the imperfect legal framework.  The authorities routinely engage in behavior, such as abuse of peaceful protesters, ordering transportation companies to pause their work and setting roadblocks on major highways on the days of rallies in Yerevan, etc., that cannot be considered legal under even the most frugal interpretations of the existing law.  The Law on Conducting Meetings, Assemblies, Rallies, and Demonstrations, however, which was amended following the events of 1 March, 2008, is inadequate.  The amendment must be revoked and the law should be restored to its initial content.  The deficiency of this law and the need to change it has been recognized by the PACE.  Below are the articles from two PACE resolutions dealing with this problem:
Article 8.4 of Resolution 1609: “Freedom of assembly must be guaranteed in both law and practice, in compliance with Article 11 of the European Convention on Human Rights; this requires that the amendments recently adopted by the National Assembly on the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations be revoked in line with the recommendations of the Venice Commission with immediate effect.”
Article 10 of Resolution 1677: “Despite positive changes in the Law on Conducting Meetings, Assemblies, Rallies and Demonstrations, the Assembly notes that requests to organize rallies are still often rejected by the authorities on technical grounds, or that undue restrictions are placed on them. It therefore reiterates its call for the authorities to respect the principle of freedom of assembly in practice, and to implement any recommendations resulting from the project being carried out jointly by the Council of Europe and the Organization for Security and Co-operation in Europe (OSCE) to monitor the implementation of the amended law on rallies and demonstrations.”
 
Time-frame: All the National Assembly can do to restore the Law on Conducting Meetings, Assemblies, Rallies, and Demonstrations is revoke the amendment introduced after 1 March, 2008.  It should be possible to do it no later than the end of March, 2010.
 
6.     Pre-term Presidential and Parliamentary Elections
 
The current distribution of political power in Armenia does not reflect the distribution of actual votes.  Both the parliamentary and the presidential elections were conducted with massive violations and fraud.  These violations have been documented by independent observers and researchers.[2]  The information regarding the unlawful involvement of the armed forces in the presidential elections, which has become incontrovertible due to some recent discoveries, has indeed raised the question as to whether what the authorities did amounted to a coup d’etat.[3]
 
The PACE recognized the failure of the presidential elections to serve the purpose that elections are meant to serve in Resolution 1609:
Article 6.1: “The National Assembly of Armenia has so far failed to play its role as a forum for political debate and compromise between the different political forces. Based on a “winner takes all” attitude, the current political system excludes the opposition from any effective participation in the decision-making process and governance of the country. This has resulted in, inter alia, a part of the political spectrum in Armenia is not represented in the current National Assembly.”
Time-frame: Pre-term elections can be held in the period between June and September, 2010.
 
APPENDIX
 
PROPOSALS FOR REFORMING THE ELECTORAL CODE OF ARMENIA
 
It is possible to form a government on the basis of the free and direct expression of the will of the people in the Republic of Armenia within the confines of the existing legislation if the authorities were to demonstrate the necessary political will and if they were to refrain from violating the existing laws.  Nevertheless, we propose the following reforms of the electoral legislation, which can create additional difficulties for violations and falsifications of elections. 
1.     The central and local electoral commissions must be formed under the auspices of the state, which takes on the responsibility for the elections by becoming the guarantor of the legality of the entire electoral process (instead of the currently functioning party-based mechanism of appointments).
2.     The majoritarian system must be abolished, and all the 131 seats in the parliament must be contested through a system of proportional representation.
3.     The free airtime on public television allocated for the elections must be at least quintupled, and the relevant programs must be broadcast in the interval between 8:00PM and 12:00PM.  The paid programs should not be more expensive than the advertisement for commercial products.
4.     The proxies should be allowed to have access to the signed lists and be able to obtain copies of the lists.
5.     Civilian control over the voting lists prepared in military units must be instituted.  The lists must be made available to the CEC in order to prevent multiple voting and in order for proxies to have access to both the total numbers and the numbers from individual military precincts.
6.     In order to prevent multiple voting, people, who vote must have their fingers covered in ink.
7.     Cameras should be installed in all precincts and at the entrances of all precincts, which will record the entire process of voting, vote counting, and vote tallying.  The proxies must have the right to subpoena the recordings. 


[1] Attached to this document is an appendix with a set of proposals to improve the electoral code worked out at the Central Headquarters of the Armenian National Congress.
[2] For ODIHR’s final report on the parliamentary elections in Armenia see http://www.osce.org/documents/odihr/2007/05/24667_en.pdf. For ODIHR’s final report on the presidential elections see http://www.osce.org/documents/odihr/2008/05/31397_en.pdf.  For a statistical analysis that demonstrates the fraudulent nature of the presidential elections see http://www.pf-armenia.org/fileadmin/pfa_uploads/PFA_Election_Report--FINAL.pdf.
[3] A motion to investigate this charge has been presented to the PACE.  The text of the motion can be found at http://assembly.coe.int/main.asp?Link=/documents/workingdocs/doc10/edoc12157.htm.