COMMITTEE ON ENFORCED DISAPPEARANCES EXAMINES REPORT OF ARMENIA
States News Service
February 4, 2015 Wednesday
GENEVA, Switzerland
The following information was released by the United Nations Office
at Geneva (UNOG):
The Committee on Enforced Disappearances today concluded its
consideration of the initial report of Armenia on how it implements
the provisions of the International Convention on the Protection of
All Persons from Enforced Disappearance.
Presenting the report, Hovhannes Poghosyan, Deputy Director of the
Police of Armenia, said that the intensive reform of political and
legal structure of the country had started with the first days of
independence. Armenia considered ratification of the Convention an
essential step towards bringing the protection of human rights and
fundamental freedoms into compliance with international standards.
There had been no cases of enforced disappearance registered in Armenia
and there was no separate article on enforced disappearances in the
Criminal Code, but a new draft article on enforced disappearances to
the Criminal Code had been prepared.
During the dialogue, Experts asked about the process of amending
the Criminal Code and the severity of punishments prescribed for
crimes of enforced disappearances, treatment of foreign national and
stateless persons, extraditions and the principle of non-refoulement,
statute of limitations and prosecution by military bodies. Expert also
enquired about the definition of a victim, the direct applicability of
the Convention in courts, the role of the Ombudsman and the treatment
of children whose parents were missing.
In concluding remarks, Mamadou Badio Camara, Committee Expert and
Co-Rapporteur for the report of Armenia, stressed that enforced
disappearance was a crime of the utmost gravity. He said the discussion
had also focused on ways to prevent secret detention and enforced
disappearances, and the importance of registers. Protection of personal
data, principle of non-refoulement and the definition of victim were
also very important. Suela Janina, Co-Rapporteur for Armenia, stated
that the Committee was encouraged by the proposed definition of the
crime of enforced disappearance, emphasizing that implementation was
as important as legislation itself.
Mr. Poghosyan, in concluding remarks, thanked the Committee for
its excellent work and providing constructive remarks. Armenia would
carefully study concluding observations and provide answers in writing
to all outstanding questions.
The delegation of Armenia included representatives from the Armenian
Police Headquarters, Ministry of Justice, Ministry of Foreign Affairs
and the Permanent Mission of Armenia to the United Nations Office
at Geneva.
When the Committee reconvenes at 3 p.m. this afternoon, it will begin
consideration of the initial report of Serbia (CED/C/SRB/1).
Presentation of the Report
HOVHANNES POGHOSYAN, Deputy Director of the Police of Armenia,
said since independence Armenia had taken the path of creating a
democratic society based on the rule of law. The intensive reform of
the political and legal structure of the country started with the first
days of independence. Armenia had been actively involved in activities
launched within the United Nations framework and had co-operated
with many structures and subdivisions of the Organization. Armenia
was a signatory to numerous international treaties, including the
fundamental instruments in the field of human rights.
The reporting process pursuant of Article 29 of the Convention offered
a valuable opportunity for Armenia to review its legislation and
practice aimed at improvements in line with international standards.
The current report had been drafted by the Police of Armenia, while
relevant stakeholders, including various governmental institutions
and the Office of the Human Rights Defender, had had opportunity to
contribute their comments. The draft report had also been made public
to allow comments from members of civil society. Armenia considered
the ratification of the Convention an essential step towards bringing
the protection of human rights and fundamental freedoms into compliance
with international standards.
Thus far there had been no cases of enforced disappearance registered
in Armenia and there was no separate article on enforced disappearances
in the Criminal Code. Nonetheless, the provisions of the Constitution,
Criminal Code and the Criminal Procedure Code contained a series of
elements on the definition of enforced disappearance.
The delegation appreciated the additional questions raised by the
Committee which had brought to its attention issues to be considered
further. Hence, a new draft article on enforced disappearances to
the Criminal Code had been prepared and was fully in line with the
definition provided by the Convention. It was now available on the
official website of the Police. The draft article would be included in
the Criminal Code once it had passed the envisaged procedures pursuant
to the national legislation. Another draft article defined sanctions
for the act of enforced disappearance when it had a widespread or
systematic nature. Both amendments were foreseen to be included
in Section 33 of the Criminal Code as crimes against the humanity
and peace.
Questions from Committee Experts
SUELA JANINA, Committee Member serving as Co-Rapporteur for the report
of Armenia, thanked the delegation for the timely submission of the
initial report. She asked how the right of individual citizens to
appeal to the Committee would be applied, given that the State party
did not recognize the competencies of the Committee under Article 31
of the Convention.
Could the delegation inform the Committee whether there had been
broad-based consultations with civil society, as recommended by
the Committee?
Could the provisions of the Convention be directly invoked by judges in
Armenia and how was that done in practice. An Expert wanted to know
whether the domestic legal framework provided for derogation from
any human rights under special circumstances, and asked for details.
In the opinion of the delegation, were elements contained in different
crimes listed in the Criminal Code sufficient to cover the crime of
enforced disappearances? What was the current state of play regarding
the mentioned amendments to the Criminal Code?
A question was asked on how the State party dealt with crimes of
enforced disappearances which were committed by individuals and groups
without endorsement of the State.
While Armenia was not a party to the Rome Statute, was there any
update on the possibility to ratify the Statute and what were the
challenges along the way?
An Expert wondered if the existing legislative provisions on invoking
the superior to justify the crime would be amended.
The statute of limitations for crimes considered grave and very grave
lasted between 10 and 15 years. Could the delegation elaborate on
the application of the statute of limitations by courts?
MAMADOU BADIO CAMARA, Committee Member serving as Co-Rapporteur for
the report of Armenia, asked whether foreign nationals and stateless
persons were subject to the jurisprudence of Armenia if they committed
grave crimes or crimes against international conventions ratified
by Armenia.
If crimes were committed abroad and the alleged perpetrator was
in Armenia, what might happen in the absence of a legal aid treaty
with the country where the crime had been committed. On the matter
of extraditions, could Armenia refuse to extradite someone based
on any form of immunity? Was enforced disappearance considered a
political crime?
What provisions and mechanisms were provided to ensure that if a crime
of enforced disappearance was committed, the suspect would not have
the possibility to influence the investigation, especially if he was
police, a military officer or a gendarme?
What role did the Office of the Public Prosecutor and the judicial
authorities play in cases of enforced disappearances? Could military
commanders investigate cases of enforced disappearances, and if so,
only those committed by military personnel, or also by civilians?
Would so-called “legitimate acts” be investigated if they led to
the crime of enforced disappearances? Had the Constitutional Court
established that there were no incompatibilities with the Convention?
Could the delegation explain what it meant by “persons outside of
the law”?
The Convention covered a whole range of issues, including preventive
measures, which could be applied in the country on a regular basis.
Had any provisions of the Convention been directly applied or invoked
by courts? How many countries had Armenia concluded extradition
treaties with, another Expert inquired.
Responses from the Delegation
Responding to questions on international covenants and the
Constitution, a delegate said that Armenia was considering subscribing
to Articles 31 and 32 of the Convention. A full procedure would need
to be followed again, including asking for the Parliament’s approval.
Armenia had accepted optional protocols allowing for individual
initiatives of the following treaties: International Covenant on Civil
and Political Rights, International Covenant on Economic, Social and
Cultural Rights and the Convention on the Elimination of All Forms
of Discrimination against Women.
It was explained that every person, court and governmental institution
could directly invoke provisions of the ratified conventions, even if
they were not spelled out in the national legislation. Courts could
directly cite provisions of the Convention.
Ratification of the Rome Statute, which Armenia had signed in 1998, had
been stopped by the Constitutional Court in 2005, as some provisions
of the Statute were found to be in contradiction with the Constitution
of Armenia. International conventions could be ratified only if they
were not contradicting the Constitution. Armenia was currently in
the process of amending the Constitution.
The delegation specified that Armenia had 12 bilateral agreements
on mutual legal assistance, and nine bilateral treaties and three
applicable treaties on extradition.
If a crime was committed in the territory of another State, the
principle of reciprocity was applied. The competent bodies for
communication on mutual legal assistance were the Office of the
Prosecutor and the Ministry of Justice. If there was no international
treaty, an agreement had to be reached through diplomatic channels
between Armenia and the concerned country. Extradition of diplomats
was not possible due to the provisions of the 1961 Vienna Convention.
A delegate said no feedback from civil society regarding the
preparation of the report was received, so the State party had
proceeded with the consultation process within Government structures
and with the Ombudsman’s Office.
The process of introducing draft laws in Armenia involved discussions
with State bodies first. Based on their recommendations, changes
were made in the draft law, after which it was shared on the webpage
for consultations with civil society. Further, an expert opinion
was sought, after which it was sent to the President’s Office for
Government approval, before being sent to Parliament for the final
adoption. At all stages, input by civil society was welcome, and draft
laws could be revised in line with their suggestions. Currently the
amended draft of the Criminal Code was available on the webpage.
Enforced disappearance was considered a continuous crime, as it could
not be terminated unless the crime had been ended one way or the
other. The Criminal Code defined serious crimes as those for which the
maximum punishment defined was no more than 10 years of imprisonment.
Grave crimes were those leading to between 10 years imprisonment to
life in prison. In the draft law, enforced disappearance without
aggravated circumstances was defined as a serious crime, and with
aggravated circumstances it was considered a grave crime. It was not
a political crime.
The delegation explained that article 16 of the Constitution guaranteed
liberty of the person, who could be deprived of it only in accordance
with the law. Making a person disappear was clearly illegal and was
thus already prohibited. In the state of war or emergency, there
could be no derogations from any rights.
Responding to the question on military investigations, the delegation
said that preliminary investigations could be conducted by military
personnel for the crimes committed by military units. Further
investigation was conducted by State investigative committees or
security officials.
If there was a suspected enforced disappearance, a compilation of
articles mentioned in the report would be used. Investigation would
commence no matter who was suspected of being the perpetrator of
the crime. When there was a criminal process against the perpetrator
involved, and if that person was a member of the State authorities
or a police officer, his immunity and status would be revoked.
The Criminal Code stipulated that a person, regardless of their
nationality or lack thereof, would bear responsibility in line with
the laws of Armenia if a crime of enforced disappearance was committed
on its territory. If a crime was committed on vessels carrying the
Armenian flag, the perpetrator would also be borne before the courts
in Armenia.
Questions from Committee Experts
MAMADOU BADIO CAMARA, Committee Member Serving as Rapporteur for the
report of Armenia, said that the replies were very informative and the
Committee had learned a lot about the legal framework of Armenia. He
believed that the crime of enforced disappearance should fall under
the category of “grave offence’ and sanctions should be no less than
10 years imprisonment. The Convention spoke about appropriate penalties
which were necessary to deal with the seriousness of the offence.
The Expert noted that the duration of the statute of limitations
was also problematic. For the same crime of enforced disappearance,
depending on circumstances, there were two different terms of
limitations – 10 years for a “serious crime” and 15 years when it was a
“grave crime.”
SUELA JANINA, Committee Member Serving as Rapporteur for the report
of Armenia, asked about modalities courts might use to establish
statutes of limitations. The Expert noted that there was readiness
by the State party to proceed with accepting competencies of the
Committee under articles 31 and 32. The Committee was looking forward
to the completion of the ongoing procedures.
Another Expert asked whether a registry of possible enforced
disappearances existed, or if there had simply been no reports of cases
of enforced disappearances in the country. Had the Ombudsman been asked
and unofficial sources consulted about possible existence of any cases?
Returning to the continuous nature of the crime, an Expert noted that
before bringing the perpetrator to justice, it was more critical that
a missing person be found although punishing the perpetrator was,
naturally, also very important.
An Expert asked about the appointment and status of the Ombudsman. How
large was the investigation unit, another Expert inquired. Could more
details be provided on conditions of their work?
How did Armenia define a “military territory’? How long could the
preliminary investigation, carried out by the military, last? Could
they take witness statements, order detention of suspects, or carry
out other investigative actions? Did the military investigators
necessarily need to precede national security services?
While abduction could be an independent crime, it was paramount to
have specific rules on how preliminary investigations were to be
conducted. Abduction could sometimes be even worse than an enforced
disappearance.
Response from the Delegation
The delegation said that the draft law on the amendments on the
Criminal Code was at the stage of preliminary discussions and it
was the right time to make changes and amendments at the moment. The
articles related to enforced disappearances currently prescribed less
strict punishments than suggested by the Committee. The delegation
fully agreed with the Committee’s position and thus envisaged changes
which would include the seriousness of the crime in the law. If a
crime of enforced disappearance has occurred, the perpetrator would
be punished by compilation of the existing articles present in the
Criminal Code.
Regarding justification of the crime by legal order, the delegation
explained that when conducting a legal order, when a person committed
an offence, the person who gave the order would be punished, which
was considered reasonable by the delegation.
Studies had been conducted by the Police on various crimes which could
have led to or equaled an enforced disappearance. All those crimes were
registered in the police information centre, so such a crime could
be identified even though a clear article might not yet exist in the
Criminal Code. Mass media reaction to such an issue would also bring
the spotlight on it. Both police officers and special investigators
were regularly trained by both Armenian citizens and foreigners,
so their skills remained up-to-date.
A delegate explained that the special investigative body was
independent, whose head was appointed by the President of Armenia,
with the advice of the Prime Minister, for a term of six years. More
experienced investigators were members of the body, and the activities
of the body were regulated by the Law on Investigations-
It was not necessary for a crime committed on the territory of a
military unit for State investigators be involved, said a delegate.
With regard to continuous crimes, a delegate said that even if the
perpetrator was dead, the investigation would naturally continue to
identify the whereabouts of the victim.
The delegation reiterated that international treaties had primacy
in the Armenian legal system. Domestic legal provisions were still
needed in order to establish clear sanctions.
Regarding civil society involvement in preparing draft law on the
amendments on the Criminal Code, a delegate said the draft was
available at the website of the Police of Armenia, and in case of
comments, there were consultations and meetings organized. Receiving
feedback from the civil society had proven to be very effective and
useful for the Police.
The status of the Ombudsman was clarified. He or she was elected
by the Parliament, was independent and closely cooperated with the
Government, local authorities and the civil society. While no direct
comments had been received by the civil society on the draft report,
the Ombudsman, who was in close contact with the civil society,
had contributed to the preparation of the report.
Questions by Experts
An Expert asked whether there were any exceptions to the principle
of non-refoulement in the Armenian legislation. While illegal entry
into the Armenian territory was punishable, were there any plans to
amend that article in order to bring it in line with the principle
of non-refoulement if the individual would be in danger if returned
to his country.
In order to prevent secret detention and enforced disappearances,
keeping of registers in all detention facilities was critical,
the Expert stressed. Who had access to those registers, beyond the
competent authorities? Which authorities were monitoring and checking
that those registers were properly compiled?
What were the modalities on forced placement in treatment centres,
the delegation was asked, as well as if a detainee was a member of the
armed forces, whether his family would be informed about his detention?
How were the regional offices of the Ombudsman supported? Could
the Ombudsman receive complaints on the alleged acts of enforced
disappearances, and had such cases ever been submitted to that office?
What was the current status of the envisaged Military Ombudsman?
Could the delegation elaborate on the existence of mechanisms to
ensure the right to know the truth about disappeared persons, the
Expert asked. Experts also asked about search methods for missing
persons, how suspects for enforced disappearances could be released
and the conditions on exercising personal jurisdiction if an Armenian
citizen committed a crime abroad.
Regarding children, an Expert asked whether existing procedures
were in the best interest of the child, whether children had the
opportunity to express their views in that regard, and whether a
child whose parents were missing or in custody would be given into
the care of his relatives.
Did the Criminal Code include family members of the victim in cases
when the victim was found alive, asked another Expert. What were the
procedures in their right to know, and what was the current concept of
“the victim’? What happened if a person was disappeared and it was
not known if he was dead or alive, but the family presumed they were
still alive?
Response from the Delegation
The delegation reiterated that the Ombudsman was elected by the
Parliament for six years. That function was independent in the exercise
of its power; the staff of the Ombudsman Office were funded by the
State budget. There were three local offices of the Ombudsman.
The Office of the Ombudsman had been actively engaged in the
preparation of the initial report, and had not reported on any cases
of enforced disappearances that it was aware of.
There was an initiative in place to create an Office of the Military
Ombudsman, and the draft was to be presented by the end of 2014. The
delegation would check and revert.
Generally, extradition requests would need to take into consideration
relevant legal provisions of the country requiring extradition;
the crime of enforced disappearance would be treated along its
constitutive elements, given that it still did not exist as such in
Armenia’s legislation.
On secret detentions, a delegate explained that there was no law
specifically relating to it, such an article was envisaged. Persons
were only to be deprived of liberty in accordance with law and any
deviation from that was to be considered unlawful detention.
Responding to questions on registration information in detention
facilities, it was said that all the people with the rights to conduct
monitoring had a chance to review that information from time to time.
Those included President, Prime Minister, Members of the Parliament,
Prosecutor-General, Ombudsman and others. The Ombudsman could enter any
detention facilities and check on the conditions and the accurateness
of the registers.
Families of detained military personnel would be the first to be
informed about their detention, followed by military commanders,
clarified a delegate. If a victim was absent or unable to realize his
rights, with the help of the prosecutor or the court, successor of the
victim was decided on the basis of the blood relations to the victim.
If the family relation was at the same stage, other circumstances
would be taken into consideration.
Registration in detention facilities was constantly monitored by
police organs and prosecutors, as well as by the civil society
and international organizations and there were no problems with
registration currently. Any personnel who did not follow registration
rules would be sanctioned. All personnel involved in law enforcement,
military and judiciary underwent training programmes and workshops,
confirmed another delegate.
If a child was unlawfully separated from his parents, the Criminal
Code stipulated punishment and liability. False adoptions were
also criminalized, and there were several bases for revocation of
an adoption. If a child was 10 years old or more, his opinion was
taken into consideration. Closest relatives were considered first if
a child’s parents were disappeared.
Regarding deportations of people from the territory of Armenia,
the principle of non-refoulement was applied when it came to both
extraditions and deportations whenever there was a risk of cruel or
inhuman treatment in the home country, confirmed a delegate.
Questions by Experts
In follow-up questions Experts asked whether the principle of the
right to information was restricted somehow in Armenian legislation.
The delegation was asked to clarify the difference between
“imprisonment” and “placement in custody”, and to state whether
Armenia accepted diplomatic assurances when considering extradition,
especially when death penalty was a possible punishment. An Expert
asked about prison overcrowding in Armenia and its connection with
the accurateness of detention registers.
Several Experts asked for further clarification on the definition of
victim. The disappeared person’s family and relatives could also be
considered as victims due to their suffering. Could the successor
also be considered a victim? An Expert stressed that a disappeared
person should not be considered dead until established so without
doubt. On the contrary, it was to be presumed that the person was
alive. A successor should not be designated while the person was
possibly still alive.
Response from the Delegation
On extradition, there were no specific mechanisms to evaluate risks
that a person might be subject to an enforced disappearance, clarified
a delegate. Written guarantees by the receiving countries were needed
to ensure that the human rights of the extradited persons would be
respected. Extradition was not conducted if a possible punishment
was death penalty.
On the right of relatives to the information, the family of an
imprisoned person would be informed no later than 12 hours after the
detention; the same applied to foreign citizens and stateless persons,
said a delegate.
Regarding the registers of the detained, a delegate said that those
were not electronic yet, but they were kept up to the date in paper
copies.
In case of enforced disappearances, damage could be physical or
psychological. If a victim was absent, and a successor was his
relative, in accordance with the law. If the victim was found, he
would reclaim restitution rights, if he was able to exercise them.
Whenever the victim applied, he would be given compensation.
Concluding Remarks
MAMADOU BADIO CAMARA, Committee Member and Co-Rapporteur for Armenia,
said that the constructive dialogue was an opportunity to consider
the legal provisions applicable in the State party, particularly the
Constitution and the Criminal Code. The Experts stressed that enforced
disappearance was a crime of the utmost gravity. The discussion focused
on measures to prevent secret detention and enforced disappearances,
which was why the importance of registers was brought up. Protection
of personal data, principle of non-refoulement and the definition of
victim were very important. The Convention had a very broad notion
of who could be a victim, broader than national legislation in many
countries, as it included relatives of the disappeared person. The
importance of training on the main provisions of the Convention was
emphasized. The Committee was greatly interested in Armenia’s draft
amendments of the Criminal Code to provide for a crime of enforced
disappearance, which was commendable.
SUELA JANINA, Committee Member and Co-Rapporteur for Armenia, stated
that the Committee was encouraged by the proposed definition of the
crime of enforced disappearance, and supported the State party in
pursuing broad discussions with the Ombudsman and the civil society.
It was important that the definition was in line with Article 2 of
the Convention. While legislative process was important, actual
implementation was equally important. The Committee hoped its
recommendations would help Armenia meet its international obligations.
HOVHANNES POGHOSYA, Deputy Director of the Police of Armenia, thanked
the Committee for its excellent work and providing constructive
remarks. Armenia would carefully study concluding observations and
provide answers in writing to all outstanding questions.
EMMANUEL DECAUX, Committee Chairperson, recalled that Armenia had
been among the first States to ratify the Convention, and thanked
Armenia for submitting its initial report within the two-year time
period provided. The Committee hoped its comments would help the
State party in the process of finalizing changes to the Criminal Code.