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Law of RA on the Human Rights Defender

 

Adopted:  21.10. 2003
Signed: 19.11. 2003
Entered into the force:  01.01.2004
Amendments and supplements to the law of: 01.06.06, 07.12.10
Unofficial  translation  
 
Article 1. GENERAL PROVISIONS

The present Law defines the procedure of election and dismissal of the Human Rights Defender, as well as the powers, forms and the guarantees of his/her activity.
(Amendment of article 1 in 01.06.06 ՀՕ-112-Ն law)

Article 2. HUMAN RIGHTS DEFENDER

The Human Rights Defender (hereinafter referred to as 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.
(Amendment of article 2 in 01.06.06 ՀՕ-112-Ն law and in 07.12.10 ՀՕ-200-Ն law)

Article 3. ELECTION OF THE DEFENDER

1. The post of the Defender shall be held by a person having attained the age of 25, who has high degree of prestige in the society, who the last five years lives in Republic of Armenia, who is a citizen of the Republic of Armenia and has right to vote.
2. The Defender shall be elected by the National Assembly by the votes of more than 3/5 of the total number of deputies from candidates for a term of 6 years, nominated by at least 1/5 of the National Assembly deputies.
The Defender should take the following oath upon his/her election:
“Having accepted the commitments of Human Rights Defender I swear hereby to be faithful to RA Constitution and laws, the principles of justice, social co-existence as to defend the human rights and fundamental freedoms of individuals and citizens.
I swear to act in impartial, honest and diligent manner”.
3. The Defender shall take office on the day when the term of office of the previous Defender expires. In the event the office of the Defender is vacant at the moment of the election, Defender shall take office on the next day following the election.
4. Next election of the Defender should be held in 40 days preceding the termination of Defender's powers.
(Amendment of article 3 in 01.06.06 ՀՕ-112-Ն law)

Article 4. RESTRICTION ON OTHER ACTIVITIES OF THE DEFENDER

1. The Defender shall not engage in entrepreneurial activity, shall not hold any office in state or local self-governing bodies or commercial organizations and shall not perform other work for compensation, except for scientific, pedagogical or creative activities.
2. The Defender shall not be a member of any political party, nor shall he/she nominate his/her candidacy for elections, participate in pre-election campaigns.
3. Within 14 days after assuming Office, the Defender shall discontinue any activity that is inconsistent with the requirements of this Law.
(Amendment of article 4 in 07.12.10 ՀՕ-200-Ն)

Article 5. INDEPENDENCE OF THE DEFENDER

1. The Defender shall be independent in executing his/her powers and shall be guided only by the Constitution and the Laws of the Republic of Armenia, as well as recognized norms and principles of International Law. The Defender shall not be subordinated to any state or local self-governing body or official.
2. The Defender shall not be obligated to provide clarifications, not even as a witness, about the nature of a complaint or a document in his/her possession. He/she shall not make them accessible for familiarization with the exception of the cases and procedure not stipulated by the Law.
3. Defender’s decisions are not considered as administrative acts and not subjected to appeal.
(Amendment of article 5 in 01.06.06 ՀՕ-112-Ն law)

Article 6. TERMINATION OF DEFENDER’S POWERS

1. The Defender’s powers shall terminate on the sixth year following the date of his/her oath.
2. The Defender’s powers shall be terminated before the appointed time only if:
1) a verdict of the Court convicting the Defender has entered into legal force;
2) the Defender expatriates the Republic of Armenia or got citizenship of other country;
3) the Defender reiterates resignation no later than 10 days, since he/she submits a letter of resignation to the National Assembly of the Republic of Armenia;
4) the Defender is declared incapable, missing or deceased by an effective decision of the Court;
5) in case of Defender’s death.
3. In case of existence of bases provided to the second part of the present article, the President of National Assembly informs the deputies about the early termination of Defender’s powers.
4. In case of termination of the Defender’s powers, new elections will be called within a month from the date when the post remains vacant.
(Amendment of article 6 in 01.06.06 ՀՕ-112-Ն law)

Article 6.1 THE HUMAN RIGHTS DEFENDER IN THE SPHERE OF INTERNATIONAL LAW

The Defender is recognized as an Independent National Preventive Mechanism provided by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
(The law is amended by Article 6.1 on 08.04.08 ՀՕ -14 Law)

Article 7. COMPLAINTS THAT ARE SUBJECT TO THE DEFENDER’S CONSIDERATION

1.The Defender shall consider the complaints of individuals (including citizens) regarding the violations of human rights and fundamental freedoms provided by the Constitution, laws and the international treaties of the Republic of Armenia, as well as by the principles and norms of International Law, caused by the state and local self-governing bodies and their officials.
The Defender cannot intervene into judicial processes. She/he may ask for information from the courts concerning with the guaranteeing the use of provisions of 1st paragraph of article 10, the 5th subparagraph of paragraph 1 of article 10 and paragraph 1 of article 17. The defender has the right of providing advice to those that wish to appeal the decisions and judgments of the court.
2.The Defender shall not consider the complaints concerning the actions of non-governmental bodies and organizations or their officials.
3.The Defender shall have the right to attend and speak at Cabinet meetings, as well as at meetings in other state agencies when issues related to human rights and fundamental freedoms are discussed. The Defender shall also have the right to propose for discussion at these sessions issues related to violation of human rights and fundamental freedoms as well as violations of the requirements of this Law by state agencies or their subordinate agencies or their officials.
4.The Defender shall have the right to attend the sessions of the National Assembly of the Republic of Armenia and make a speech in accordance with the procedure defined by the law of the Republic of Armenia on the “Statute of RA National Assembly” when issues related to rights and fundamental freedoms are discussed.
(Amendment of article 7 in 01.06.06 ՀՕ-112-Ն law)

Article 8. THE RIGHT TO APPEAL TO THE DEFENDER

1. Any physical entity regardless of his/her nationality, citizenship, place of residence, sex, race, age, political and other views, and capabilities can appeal to the Defender.
The Defender or his/her representative has the right of a free access, by his/her own initiative, to military units, police detention centers, pre-trial or criminal punishment exercising agencies, as well as other places of coercive detention in order to receive complaints from the persons being there.
Persons who are under arrest, in preliminary detention or serving their sentence in penitentiaries, as well as persons in other places of coercive detention shall also have the right to appeal to the Defender.
The Defender or his/her representative shall be guaranteed to have confidential, separate, unrestricted communication with persons in military units, under in preliminary detention or serving their sentence in penitentiaries, as well as persons in other places of coercive detention.
Conversations of the Defender or his/her representatives with persons mentioned in this paragraph shall not be subject to any interference or eavesdropping.
Having appealed to the defender shall not result in any administrative, criminal or other liability, or in any discrimination towards the applicant.
2. Legal entities may also appeal to the Defender.
A complaint made on behalf of a legal entity shall relate to violation of human rights and fundamental  freedoms, if the legal entity’s rights entails violation of the rights and fundamental freedoms of participant physical persons of the entity (shareholders, stockholders, members, etc.) and its officials, or if the violation of the legal entity’s rights has caused them damage or there exists the potential for damage.
3. With the purpose of protecting other persons’ rights only the representatives of those persons as well as family members and devisees of deceased persons can appeal to the Defender.
4. State and local self-governing bodies, except for the agencies of trusteeship and guardianship, shall not have the right to appeal to the Defender.
5. State officials shall have the right to appeal to the Defender only for the protection of their violated human rights and fundamental freedoms as a physical entity.

Article 9. APPEALING TO THE DEFENDER

1. A complaint shall be submitted to the Defender one year from the day when the complainant became aware of or should have become aware of the violation of his/her rights and freedoms.
2. Within the first year of the effectiveness of this law, complaints about violations of human rights and fundamental freedoms of the past three years can be submitted to the Defender.
There shall not be a specific compliant form but it shall contain the first name, last name, place of residence (address) of the physical entity, or the name, organizational-legal structure and location of the legal entity submitting the complaint. Information on the human rights and fundamental freedoms that were or are being violated shall be contained in the complaint.
If the complainant has the documents required for clarification and settlement of the case, as well as acts adopted in judicial or administrative procedure in relation to the complaint, these documents may be attached to the complaint.
3. The complaint may be submitted either in written or in oral form. The content of an oral complaint and  the data provided in the second part of this Article shall be recorded by the Defender or his/her staff.
4. The complaints and other documents sent to the Defender by persons under arrest, in preliminary detention or serving their sentence in penitentiaries, as well as persons in other places of coercive detention, shall not be subject to inspection or censorship and shall be directed to the Defender within 24 hours by the administrative staff of those institutions.
5. Upon the request of the complainant the agency receiving complaints addressed to the Defender shall be obligated to provide a confirmation (receipt) on receiving the complaint.
6. No state duty shall be collected for the complaints directed to the Defender.

Article10. COMPLAINTS THAT ARE NOT SUBJECT TO THE DEFENDER’S CONSIDERATION

1. The Defender shall not consider those complaints that must be settled only by Court. Likewise, the Defender shall discontinue consideration of a complaint if after commencing the process of consideration the interested person files a claim or an appeal with the Court.
2. The Defender shall be entitled not to consider complaints that are anonymous, and hat where received later the day when the complainant became aware of or should have become aware about the violation of his/her rights and freedoms, as well as those complaints that do not contain enough grounds of violation of human rights and fundamental freedoms and lack a claim.
3. If the issue raised in the complaint is of such a nature that may be settled by another state agency or official, and if there was no prior discussion of the case by the said official, upon the consent of the complainant the Defender may assign the complaint to that official for consideration and oversee the process of discussion.
In this case the complainant shall be notified about the assignment of the complaint to another state official.
(Amendment of article 10 in 01.06.06 ՀՕ-112-Ն law)

Article11. RECEPTION OF COMPLAINTS

1. Upon receiving a complaint the Defender shall make a decision on:
1) accepting the complaint for consideration;
2) presenting to the applicant possibilities of the protection of his/her human rights and fundamental freedoms;
3) upon complainants’ consent assigning the complaint to those state or local selfgoverning bodies or a their officials who have the jurisdiction to settle the case;
4) not considering the complaint.
2. The refusal to consider a complaint shall be substantiated according to the first part of Article 10 of this Law. If the Defender decides to decline a complaint s/he shall explain to the complainant the statutory procedure for consideration of that complaint.
3. The Defender shall send a copy of the adopted decision to the complainant as soon as possible, but no later than in 30 days time from the date s/he received the complaint.
4. the Defender shall by his own initiative make a discretionary decision about accepting the issue for consideration, particularly in cases when there is information on mass violations of human rights and freedoms, or if these violations have exceptional public significance or are connected with the necessity to protect the rights of such persons who are unable to use their legal remedies,
5. After making a decision on accepting a complaint for consideration, the Defender shall be entitled to apply to the relevant state agencies or their officials for assistance in the process of examining the circumstances subject to disclosure.
6. Examination of issues indicated in the complaint cannot be performed by the state or local selfgoverning body or official, whose decisions or actions (inaction) are being complained against.

Article12. EXAMINATION OF ISSUES RAISED IN A COMPLAINT

1. The Defender is authorized to:
1) have free access to any state institution or organization, including military units, prisons, preliminary detention facilities and penitentiaries;
2) require and receive information and documentation related to the complaint from any state or local self-governing body or their officials;
3) 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;
4) instruct relevant state agencies to carry out expert examinations and prepare findings on the issues subject to clarification during investigation of the complaint;
5) familiarize with those criminal, civil, administrative, disciplinary, economic and other cases of violation of rights on which the respective Court verdicts and decisions have entered into legal force, as well as materials related to such cases on which no proceedings have been instituted;
6) familiarize with any information and documentation related to the complaint. By the written decision of the Defender the powers provided in items 1, 2, 5 and 6 of this paragraph can be exercised by members of the Defender’s staff or by members of the Expert Council;
7) appeal to the Council of Courts' Chairmen of the Republic of Armenia, with a view to receiving official clarifications of consultative nature about the existing law enforcement practice;
8) make a statement about initiating a disciplinary procedure against a judge. The person receiving the statement who is authorized to initiate such a procedure shall inform the Defender about the results of the discussion of the statement within three days after making the decision.
2. Through the relevant statutory procedure the Defender can be familiarized with information containing state and commercial secrets or other information qualified as confidential by law.
3. Officials of the state and local self-governing bodies within the framework of their jurisdiction shall transfer to the Defender, free of charge and without hindrance, the required information and
documentation, which is necessary for the review of the complaint.
4. Materials, documents or information required by the Defender shall be delivered as soon as possible, but no later than within 30 days after the Defender’s request, unless a later deadline is indicated in the request.
5. In exercising his/her 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.
(Amendment of article 24 in 01.06.06 ՀՕ-112-Ն law and in 07.12.10 ՀՕ-200-Ն law)

Article13. CLARIFICATIONS GIVEN BY THE STATE AND LOCAL SELF-GOVERNING BODIES ON THE SUBJECT OF THE COMPLAINT

1. While examining the complaints, the Defender shall give an opportunity to the state and local elfgoverning
bodies or the official, against decisions or actions (inaction) of whom the complaint has been filed, to give clarifications on the subject of the complaint and the results of examinations, and give grounds for their position in general.
2. For the above purpose, within 10 days after completing examination of the complaint, the results of the examination shall be provided to the state and local self-governing body or the official, against decisions or actions (inaction) of whom the complaint has been filed. The agency shall send its position statement and explanations to the Defender no later than within 15 days after receiving the results of the examination. The mentioned deadline can be extended by the Defender.

Article14. PUBLICATION OF COMPLAINTS OR THEIR CONTENT

1. The complaints under review or the content of those complaints shall not be subject to publication before the Defender makes a final decision on the complaint.
2. The Defender shall not have the right to publish any personal data about the complainant or any other person that were disclosed during examination of the complaint without their written consent.

Article 15. THE DEFENDER’S DECISIONS

1. Based on the findings of the considered complaint, the Defender shall take one of the following
decisions:
1) to propose to the state or local self-governing body or the official, the decisions or actions (inaction) of whom have been qualified by the Defender as violating human rights and freedoms, to eliminate the committed violations, indicating the possible measures necessary and subject to implementation for the restitution of human and civil rights and freedoms;
2) on the absence of violations of human rights and freedoms, if during the examination of the complaint no violation of human rights and fundamental freedoms by the state and local selfgoverning bodies or officials has been revealed;
3) pursuant to the defined procedure if there were discovered the bases concerning not considering the complaint, or concerning the cease of considering.
4) to bring an action before the court on invalidating in full or partially the normative legal acts of the state and local self-governing bodies or officials that violate human rights and fundamental freedoms and contradict the law and other statutes, if the state and local selfgoverning bodies or officials, who committed the named violation, do not invalidate in full or partially their corresponding legal act within the prescribed period;
5) to recommend that the authorized state agencies execute disciplinary or administrative penalties or file criminal charges against the official whose decisions or actions (inaction) violated human rights and fundamental freedoms and (or) violated the requirements of this Law.
2. Within 5 days after adopting the decision the Defender shall transfer a copy of the decision on the complaint, indicated in paragraph 1 of this Article to the state and local self-governing bodies or the officials whose decision or actions (inaction) have been appealed against.
3. Having received the Defender’s motion indicated in item 1 of this Article the state and local selfgoverning body or the official shall inform the Defender in writing about the measures taken within 20 days after receiving the motion. If required, this deadline may be extended upon the Defender’s consent.
4. The Defender shall transfer to the complainant a copy if his/her decision on the complaint indicated in item 1 of this Article within 5 days after adoption of the decision. The Defender’s decision cannot hinder the person from protecting his/her rights, freedoms and legal interests by other means not prohibited by law.
5. Upon necessity the Defender can submit special reports to the President of the Republic of Armenia and the National Assembly.
6. The Defender shall publish in mass media special information about the state and local selfgoverning body or official who failed to respond to his/her motion or did not comply or only partly complied with the requirements of the motion, together with the responses of the state and local selfgoverning  body or their officials to the Defender’s decision and motion if all other means of resolving the issue through state authorities have been exhausted.
(Amendment of article 15 in 01.06.06 ՀՕ-112-Ն law)

Article16. CLARIFICATIONS GIVEN BY THE DEFENDER

Based on the results of review and analysis of information on human rights and freedoms and in relation to finalizing the results of reviews, the Defender shall be authorized to provide advisory clarifications and recommendations the state and local self-governing bodies and officials.

Article 17. THE DEFENDER’S REPORT

1. Each year, during the first quarter of the year, the Defender shall deliver a report on his/her activities and on the human rights situation in the previous year to the President of the Republic of Armenia and the representatives of legislative, executive and judicial authorities. The reports shall be presented to the National Assembly during the first sitting of the National Assembly’s spring session.
The Defender also presents his/her report to the mass media and relevant NGO-s.
2. In cases that produce widespread public response, or in cases of flagrant violations of human rights or mass occurrence of non-elimination of the violations, the Defender shall have the right to deliver unscheduled public reports.

Article18. LIABILITY FOR NON COMPLIANCE WITH THE REQUIREMENTS OF THE LAW

Intervention into activities of the Defender that is aimed at influencing the Defender’s decisions, or hindering implementation of the Defender’s statutory responsibilities, or failure to submit the required information or documentation in due time, or threatening or offending the Defender shall incur liability in the procedure and scope stipulated for similar violations against the Court or the Judge.

Article 19. THE DEFENDER’S IMMUNITY

No criminal prosecution or bringing to account shall be brought against the Defender over the whole period of execution of his/her powers and after that for the actions following from his/her status including for the opinion expressed at the National Assembly, if it does not contain slander or offence.
The Defender shall not be involved as a defendant, be detained or called to the administrative account without the consent of the national Assembly. The Defender shall not be arrested without the consent of National Assembly, exept the cases when the Defender is caught in act of crime. In this case the President of the National Assembly shall be informed immediately.
(Amendment of article 19 in 01.06.06 ՀՕ-112-Ն law)

Article20. SOCIAL GUARANTEES FOR THE DEFENDER

1. The official rate of compensation of the Defender shall be equal to that of the President of the Constitutional Court of the Republic of Armenia. The bonus to the official rate of compensation of the Defender shall be calculated in the manner prescribed by the legislation for the President of the Constitutional Court of the Republic of Armenia.
2. The Defender shall be entitled to an annual paid vacation of 30 working days.
3. Throughout the duration of his/her term the Defender shall be exempt from military service, drafting and military training.
4. A person having attained the age of 65 who has occupied the position of the Defender for at least one constitutional term shall be entitled to retirement income in the manner prescribed by the legislation for that of the President of the Constitutional Court of the Republic of Armenia. In case of increase in the official rate of compensation or bonus of the Defender the retirement income shall be recalculated accordingly.
(Amendment of article 20 in 07.12.10 ՀՕ-200-Ն law)

Article21. SECURITY OF THE DEFENDER

The Defender and members of his/her family shall be under the protection of the State. Based on the request of the Defender, the competent state agencies shall take all the necessary measures to ensure the security of the Defender and members of his family.

Article 22. THE DEPUTY DEFENDER

(Article 22 is repealed)
(Amendment of article 22 in 01.06.06 ՀՕ-112-Ն law)

Article 23. THE STATUS OF THE DEFENDER’S STAFF

1. The Staff of the Human Rights Defender (hereinafter also referred to as the Staff of the Defender/Defender’s Staff) is a state governance institution without legal status where state service,
referred to as state service in the Staff of the Human Rights Defender (hereinafter also referred to as state service in the Staff of the Defender) is performed.
2. The state service in the Staff of the Human Rights Defender is the professional activity carried out in the Staff of the Human Rights Defender with a view to ensuring the exercise of the powers conferred upon the Defender with the Constitution of the Republic of Armenia and this Law.
3. Separate units of the Defender’s Staff may be established in marzes.
4. The powers conferred upon the founder and the governing body of the Institution shall be exercised by the Defender.
5. Those persons that hold any position in the Defender’s staff cannot be convicted, persecuted, detained, arrested or brought to court for any action performed, opinion expressed or decision made while performing their responsibilities under the Defender’s instructions. In all these circumstances when any person holding a post in the staff is detained, arrested or brought to court, the enforcing agency shall inform the Defender of this occurrence in the defined procedure and due time.
(Amendment of article 23 in 01.06.06 ՀՕ-112-Ն law and in . 07.12.10 ՀՕ-200-Ն law)

Article 23.1. LEGAL ACTS REGULATING STATE SERVICE IN THE STAFF OF THE DEFENDER

1. With the exception of the activity related to technical maintenance functions, professional activity in the Defender’s Staff is state service, and the employees occupying the respective positions in the Staff are state servants.
2. The provisions of the Law of the Republic of Armenia “On Judicial Service” shall apply to the relations concerning state service in the Defender’s Staff insofar as these in themselves apply to the state service in the Defender’s Staff and do not contradict this Law.
3. In applying the provisions of the Law of the Republic of Armenia “On Judicial Service” to the relations concerning state service in the Defender’s Staff:
1) -judicial service shall imply state service in the Staff of the Defender;
2) the powers conferred upon the head of the judicial department shall be exercised by the head of the Defender’s Staff;
3) the powers conferred upon the Council of Courts' Chairmen of the Republic of Armenia and the President of the Court of Cassation of the Republic of Armenia shall be exercised by the Defender;
4) the powers which the President of the Court of Cassation of the Republic of Armenia exercises acting on the opinion of the Council of Courts' Chairmen of the Republic of Armenia, shall be exercised solely  by the Defender.
(Insertion of article 23.1 in 07.12.10 ՀՕ-200-Ն law)

Article24. FINANCING OF THE DEFENDER’S ACTIVITIES

1. The Defender and His/Her staff shall be financed from the State budget wich shall provide their usual activity.
2. The budget is the part of the State budget, through a separate line item.
2.1. The salary of the Defender shall be calculated in the manner prescribed by part 1 of Article 20 of this Law.
2.2. - The monthly payroll of the Defender's Staff shall be determined as the product of the 3.6-fold of the base rate of the compensation to judicial officers and the number of state servants and technical maintenance personnel in the Defendant’s Staff. In case of increase in the base rate of the compensation to judicial officers, coefficient 1.2 shall apply to the increased portion of the base rate, instead of coefficient 3.6.
3. The Defender's and his/her staff's budget shall be submitted to the State authorized body, pursuant to the defined procedure and the law of RA about “Budget system”, to be included into the total State draft budget.
4. In case of the adoption of Defender and Defender's staff budget financing request of the forthcoming year, by the Government the budget request shall be included into the total State draft budget, and in case of objections, shall be submitted to the National Assembly with the State draft budget.
The Government shall submit the objections to the National Assembly and the Defender concerning the budget financing.
5. The Defender manages his/her financial resources himself/herself.
The Defender shall submit financial and budget report in accordance with the procedure stipulated in Article 17 of this Law and legislation of State budget.
(Amendment of article 24 in 01.06.06 ՀՕ-112-Ն law and in 07.12.10 ՀՕ-200-Ն law)

Article 25. STRUCTURE OF THE DEFENDER’S STAFF

(Article 25 repealed in 07.12.10 ՀՕ-200-Ն law)

Article 26. THE EXPERT COUNCIL

To benefit from advisory assistance, the Defender may establish an Expert Councils composed of individuals with respective background in human rights and fundamental freedoms.
1. Members of the Expert Council shall be invited by the Defender.
2. The Expert Council shall not exceed 20 members.
3. Members of the Expert Council shall be involved on voluntary basis and shall perform their activities without any compensation.
(Amendment of article 26 in 01.06.06 ՀՕ-112-Ն law)

Article 27. TRANSITIONAL PROVISIONS

1. Paragraph 2 of Article 3, point 4 of the 2nd paragraph of Article 6 and paragraph 3, point 3 of the 1st paragraph of Article 15 of this Law shall enter into force upon establishing by the Constitution of the Republic of Armenia provisions related to the appointment of the Defender and the right to the
apply to the Constitutional Court.
2. Until the constitutional amendments are adopted the President shall
1) appoint the Defender after consulting with the groups and fractions of the National Assembly
2) provide by Article 6 the consent required by paragraphs 1 and 2 of Article 19.
The powers of the first Defender shall expire according to the point 1 of the present article on the 30th day upon the entry into force of the Constitutional amendments.
The first Human Rights Defender shall be appointed within two months after enactment of this Law.

The present law enters into force on the 1st of January 2004.
President of the Republic of Armenia
Robert Kocharyan
November 15, 2003 ՀՕ-23-Ն