CONSTITUTIONAL
LAW OF THE REPUBLIC OF ARMENIA
ON THE HUMAN
RIGHTS DEFENDER
Adopted on 16 December 2016
CHAPTER 1. GENERAL PROVISIONS
Article 1. Subject
matter of the Law
1. This Constitutional Law shall define
the powers, procedure and guarantees for the activities of the Human Rights
Defender of the Republic of Armenia (hereinafter referred to as "the
Defender"), the procedure for election and termination of powers of the
Defender, peculiarities of the legal status of persons holding civil service
positions within the Staff of the Defender.
Article 2. Human
Rights Defender
1. The Defender is an independent official who observes the
maintenance of human rights and freedoms by public and local self-government
bodies and officials, and in cases prescribed by this law also by
organisations, facilitates the restoration of violated rights and freedoms,
improvement of normative legal acts related to rights and freedoms. In the case
and according to the procedure established by the Law, the representative
(member) of the Defender is appointed (nominated) in competition councils
(competition commissions) and other bodies.
2. The Defender shall be entrusted with the mandate of the
National Preventive Mechanism provided by the Optional Protocol — adopted on 18
December 2002 — to the 1984 UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (hereinafter referred to as
"the National Preventive Mechanism").
3. The Defender shall conduct monitoring of the implementation
of the provisions of the UN Convention on the Rights of the Child adopted on 20
November 1989, as well as carry out prevention of violations of the rights of
the child and the protection thereof.
4. The Defender shall conduct monitoring of the implementation
of the provisions of the UN Convention on the Rights of Persons with
Disabilities (CRPD) adopted on 13 December 2006, as well as carry out
prevention of violations of the rights of the persons with disabilities and the
protection thereof.
Article 3. Principles
of the activities of the Defender
1. In the course of exercising his or
her powers, the Defender shall be guided by the principles of legal equality,
impartiality, publicity, transparency and other principles set forth in the
Constitution of the Republic of Armenia.
Article 4. Restriction
on the Defender to engage in other activities
1. The Defender may not hold any position not related to his
or her status within other public or local self-government bodies, any position
within commercial organisations, engage in entrepreneurial activities, and
perform other paid work except for scientific, educational and creative
activities.
2. The Defender may join or otherwise
engage in activities of international human rights organisations where it does
not contradict the functions reserved to the Defender by the Constitution and
this Law, as well as where it does not affect his or her impartiality.
3. The Human Rights Defender may not,
during his or her term of office, hold membership in any political party or
otherwise engage in political activities. The Defender shall be obliged to show
political restraint in public speeches.
CHAPTER 2.
GUARANTEES FOR THE ACTIVITIES OF THE DEFENDER
Article 5. Independence
of the Defender
1. In the course of exercising his or
her powers, the Defender shall be independent, be guided only by the
Constitution of the Republic of Armenia, this Law and international treaties of
the Republic of Armenia.
Article 6. Immunity
of the Defender
1. The Defender may not, during his or her term of office and
thereafter, be prosecuted or held liable for activity carried out as part of
his or her mandate, including for the opinion expressed at the National
Assembly.
2. Criminal prosecution against the Defender may be initiated,
as well as he or she may be deprived of liberty only upon the consent of the
National Assembly by at least three-fifths of the total number of deputies.
3. The Defender may be deprived of liberty without the consent
of the National Assembly if caught in the act of committing a criminal offence
or immediately thereafter. In this case, deprivation of liberty may not last
more than for seventy-two hours. The President of the National Assembly shall
be notified without delay of the deprivation of liberty of the Defender.
4. The Defender may not, during his or her term of office and
thereafter, furnish explanation or be questioned as a witness with regard to
applications or complaints addressed thereto during his or her term of office,
the essence of documents obtained during the examination or consideration
thereof or the decisions rendered by him or her.
5. Correspondence, phone conversations, postal, telegram
messages and other forms of communication of the Defender related to exercise
of his/her powers, shall be subject to monitoring only by a court decision upon
a motion of the Prosecutor General, if it is related to the need to prevent or
detect grave or particularly grave crimes.
Article 7. Security
of the Defender
1. The Defender and the members of his or her family shall be
under special protection of the State. Upon the application of the Defender,
competent state bodies shall be obliged to undertake necessary measures to
ensure the security of the Defender and his or her family.
Article 8. Funding
and social guarantees for the activities of the Defender
1. Appropriate funding shall be ensured at the expense of the
funds of the State Budget for smooth operation of the Defender and the Staff
thereto.
2. The budget of the Defender and the Staff thereto shall
constitute a part of the State Budget, which is funded in a separate line. The
activities of the Defender as the National Preventive Mechanism shall also be
specifically funded from the same budget line.
3. The Defender shall — as prescribed by the legislation and
within the deadline prescribed by the Law of the Republic of Armenia "On
the Budgetary System of the Republic of Armenia" — submit the budget
request (estimate) for the activities of the Defender and the Staff thereto for
the upcoming year to the authorised state body to be included in the draft
State Budget.
4. Where the budget request (estimate) of the Defender and the
Staff thereto for the upcoming year is approved by the Government, it shall be
included in the draft State Budget, and if there is an objection it shall be
submitted to the National Assembly of the Republic of Armenia along with the
draft State Budget. The Government shall present to the National Assembly and
the Defender the justification for the objection on the budget funding.
5. The amount of allocation for funding provided from the
state budget to the Defender and the Staff thereto as well as to the Defender
as the National Preventive Mechanism cannot be less than the amount provided
the year before. The funding from the state budget is implemented in equal
monthly instalments in the form of pre-payment for every month.
6. The Defender shall participate in the hearings at the
National Assembly on the draft Law of the Republic of Armenia «On State Budget»
in part related to funding of activities of the Defender and the Staff thereto,
as well as the Defender as the National Preventive Mechanism.
7. The Defender shall have the right to annual paid leave for
the duration of 30 working days.
8. During the entire term of office, the Defender shall be
released from mandatory military service, mobilisation and military exercises.
Article 9. Obligation of state
and local self-government bodies and organisations to assist in the activities
of the Defender
1. State and local self-government bodies, organisations,
officials or representatives thereof shall be obliged to provide the Defender,
as prescribed by this law, with the necessary materials, documents, information
and clarifications — free of charge and within the shortest possible time — as
well as otherwise assist in the activities thereof.
2. The materials, documents, information and clarifications
requested by the Defender must be sent to the Defender within the shortest
possible time, but no later than within 30 days after receiving the request if
a shorter deadline is not specified in the request.
3. Within the scope of his or her powers, the Defender shall
enjoy the right to priority reception at state and local self- government
bodies, organisations, officials and representatives thereof. In case of rapid
response by the Defender upon his or her request the bodies referred to in this
paragraph and the officials and representatives thereof shall be obliged to
immediately render assistance to the Defender or the representatives thereof.
4. State and local self-government bodies, organisations,
officials or representatives thereof shall be obliged to guarantee the
possibility of unimpeded and confidential communication of the Defender or the
representative thereof with a person held in a place of restriction or
deprivation of liberty. Conversations in private of the Defender or the
representatives thereof with such persons shall not be subject to intervention
or wiretapping.
5. Complaints and other documents addressed to the Defender as
well as requests or other documents sent by the Defender shall not be subject
to verification or censorship. They must be sent to the Defender without delay
upon receipt by competent bodies or organisations, but no later than within 24
hours thereafter.
Article 10. Liability for obstructing the activities of the Defender
1. Any interference, not provided for by law, with the
activities of the Defender shall be prohibited.
2. Obstructing in any way the exercise of powers reserved to
the Defender by the Constitution of the Republic of Armenia and this Law, as
well as threatening the Defender or insulting or displaying clearly
disrespectful attitude towards him or her shall entail criminal liability.
3. Failure to provide the materials, documents, information or
clarifications requested by the Defender within the deadlines prescribed by
this Law shall entail administrative liability.
Article 11. Guarantees for the activities of persons holding office within
the Staff of the Defender and experts of the National Preventive Mechanism
1. Where criminal prosecution is initiated on any ground
against a person holding office within the Staff of the Defender or an expert
of the National Preventive Mechanism, or where he or she is in any way deprived
of liberty, the body conducting the proceedings shall be obliged to promptly
inform the Defender thereon, immediately after obtaining data about the person
in question.
2. Persons holding office within the Staff of the Defender and
experts of the National Preventive Mechanism may furnish explanation or be
questioned as witnesses with regard to the essence of applications or
complaints addressed to the Defender or the decisions rendered by the Defender
based on the examination thereof, as well as provide them to other persons for
familiarisation only upon the written consent of the Defender.
CHAPTER 3. PROCEDURE FOR ELECTION OF THE DEFENDER AND
TERMINATION OF THE POWERS THEREOF
Article 12. Election
of the Defender
1. Everyone having attained the age of 25, enjoying high
authority within the public, having higher education, having been a citizen of
solely the Republic of Armenia for the preceding four years, permanently
residing in the Republic of Armenia for the preceding four years, and having
the right of suffrage, as well as having command of the Armenian language may
be elected to the office of the Defender.
2. The Defender shall be elected by the National Assembly of
the Republic of Armenia, upon recommendation of the competent standing
committee of the National Assembly of the Republic of Armenia, by at least
three-fifths of votes of the total number of deputies, for a term of six years.
3. The Defender shall assume office immediately after having
been elected by the National Assembly of the Republic of Armenia, by taking the
following oath in the presence of the deputies of the National Assembly of the
Republic of Armenia:
"By assuming the office of the
Defender, I hereby swear to defend the human rights and freedoms of an
individual and a citizen, remaining faithful to the Constitution and the laws
of the Republic of Armenia and the principles of justice. I swear to exercise
my powers impartially, in good faith and with due diligence."
4. The Defender shall assume his or her office after the
oath-taking ceremony at the National Assembly of the Republic of Armenia, on
the day following the expiry of the term of office of the previous Defender.
Where the office of the Defender is vacant at the moment of electing the Defender,
the Defender shall assume his or her duties on the day following the
oath-taking ceremony at the National Assembly of the Republic of Armenia.
5. The elections of the Defender shall be held within the time
frame set forth in the Constitutional Law of the Republic of Armenia "The
Rules of Procedure of the National Assembly".
Article 13. Termination
of powers of the Defender
1. The powers of the Defender shall terminate upon expiry of
the term of his or her office, in cases of loss of citizenship of the Republic
of Armenia or acquisition of a citizenship of another state, when a criminal
judgement of conviction rendered against him or her becomes final, a judgement
on declaring him or her as having no active legal capacity, as missing or dead
becomes final, in case of his or her death or resignation.
2. In case of resignation, the powers of the Defender shall
terminate if no later than a week after submitting the resignation letter the
Defender submits a second resignation letter. In case of early termination of
the powers of the Defender on the ground of resignation, the Defender shall
publish and present to the National Assembly a brief communication on the
activities implemented during the period between the presentation of regular
annual report thereof and the date of submitting a letter of resignation.
3. The term of office of the Defender shall be considered as
expired on the same day of the sixth year after assuming the office thereby.
4. The President of the National Assembly of the Republic of
Armenia shall — immediately upon receiving the respective information
prescribed by paragraph 1 of this Article, apart from cases of expiry of the
term, but no later than on the following day — publish an official
communication on early termination of powers of the Defender. In case of
resignation, the communication referred to in this paragraph shall be published
following the submission of the second resignation letter by the Defender.
5. Where the powers of the Defender terminate in accordance
with paragraphs 1 or 2 of this Article, except when the powers of the Defender
terminate on the ground of expiry of the term, the election of the Defender
shall be held within a one-month period following the day of publishing the
communication as prescribed by paragraph 4 of this Article.
Article 14. Substitution
of the Defender
1. During the temporary absence of the Defender, including
when he or she is on leave, official trip or when his or her powers have been
terminated, one of the department heads holding discretionary office within the
Staff of the Defender shall substitute the Defender upon his or her decision.
2. In case of impossibility of rendering a decision on
substituting the Defender or in case of his or her resignation, the Defender
shall be temporarily substituted by the head of a department within the Staff
of the Defender who is elder.
3. During the absence of the Defender, the head of the
department substituting the Defender shall exercise the powers of the Defender
reserved thereto by this Law, except for powers prescribed by Article 26,
paragraphs 5-7 of Article 28, paragraphs 1-4 of Article 29, Articles 31-33,
paragraph 4 of Article 35, paragraph4 of Article 36, paragraph 3 of Article 37,
points 3-7 and 9 of paragraph 1 of Article 39 of this Law.
CHAPTER 4. PROCEDURE FOR CONSIDERATION OF ISSUES WITHIN THE
POWERS OF THE DEFENDER
Article 15. Complaints subject to consideration by the Defender
1. The Defender shall, in case of a complaint or upon own
initiative, consider:
1) violations of human rights and
freedoms enshrined in the Constitution and the laws of the Republic of Armenia
by state and local self-government bodies and officials, as well as by
organisations exercising the powers delegated thereto by state and local
self-government bodies;
2) issues concerning violations of human rights
and freedoms by organisations operating in the field of public service where
there is information about mass violations of human rights or freedoms or it is
of public importance or it is related to the protection of interests of persons
who cannot benefit from legal remedies for protection of their rights and
freedoms on their own;
3) issues concerning violations of the
rights and freedoms of whistleblowers and persons affiliated with them by
organisations.
2. When carrying out consideration on own initiative, the
Defender shall enjoy all the powers reserved thereto by this Law, which he or
she exercises with regard to the consideration of the complaint.
Article 16. Applying to the Defender
1. Every natural and legal person shall have the right to
apply to the Defender if his or her rights and freedoms are violated by state
and local self-government bodies and officials, as well as by organisations in
cases prescribed by this Law.
2. Natural and legal persons may apply to the Defender by
lodging a complaint to the Defender or a representative thereof either by post
or in person. It is also possible to apply to the Defender with an oral
complaint, which shall be reduced to writing by the Defender or the representative
thereof.
3. Natural and legal persons may apply to the Defender both in
person and through their representatives.
4. To protect the rights and freedoms of another person, the
representative of that person, his or her legal successor, heir, the
trusteeship and custodianship bodies, children, incapacitated or incapacitated
persons, as well as close relatives of persons deprived of their liberty and
servicemen can apply to the Defender for the purpose of protecting their
rights. Legal representatives, persons authorised by law, including lawyers,
can act as representatives. At the request of the Defender or his/her representative,
the person's representative is obliged to submit a power of attorney, a
lawyer's licence, while the legal successor, the heir must submit a document
attesting to the fact of being the legal successor or heir, respectively.
5. With a written consent of the person, non-governmental
organisations may also apply to the Defender for the purpose of protecting his
or her rights.
6. For the purpose of protecting the rights of other persons,
no power of attorney or written consent is required for applying to the
Defender if it is related to the need for protecting the interests of such
persons who cannot benefit from legal remedies for their protection on their
own.
7. State and local self-government bodies may not lodge
complaints with the Defender.
8. Applying to the Defender or intervention by the Defender
may not result in any adverse consequences of unequal treatment or threat for
the complainant. Any treatment of that kind shall entail liability prescribed
by law.
Article 17. Deadlines and requirements for lodging a complaint
1. A complaint must be lodged with the Defender within a year
following the day when the applicant has learnt or should have learnt about the
alleged violation of his or her rights and freedoms.
2. The complaint shall be lodged in writing or orally.
3. No state duty shall be charged for the complaints being
lodged with the Defender.
4. The complaint must be signed, including the surname, name,
place of residence (address) of the person lodging a complaint or the name,
location of the legal person and contact information. No other specific form is
prescribed for the complaint.
5. The procedure for lodging an online complaint shall be
approved by the Defender.
6. Contents of oral complaints and data provided for by
paragraph 4 of this Article shall be reduced to writing by the Defender or the
authorised representative thereof.
7. A complaint lodged with the Defender shall be deemed as the
consent of the person who has lodged the complaint and shall warrant the
Defender to receive personal data, necessary for the consideration of the
complaint, from state and local self- government bodies, other organisations.
Article 18. Making complaints or contents thereof public
1. Prior to rendering a final decision by the Defender on the
complaint, complaints which are subject to consideration or the contents
thereof shall not be made public, except for cases when these have already been
made public by the complainant or other persons.
2. Data on the applicant or any other person, which has become
known to the Defender in the course of his or her activities, may be made
public only upon the written consent of persons in question.
Article 19. Decisions rendered with regard to a complaint
1. Immediately after receiving and registering a complaint,
examination of the complaint shall be carried out as prescribed by the
Defender, based on which the Defender shall render one of the following
decisions:
1) on accepting the complaint for
consideration;
2) on not considering the complaint;
3) on presenting to the complainant
possible means for the protection of his or her rights and freedoms;
4) on referring the complaint for
consideration to another body.
2. The Defender shall send a copy of the decision prescribed
by paragraph 1 of this Article to the complainant promptly but no later than
within 30 days upon receipt of the complaint.
3. In the cases prescribed by paragraph 1 of Article 15 of
this Law, the Defender may render a decision on initiating consideration upon
own initiative.
4. Decisions rendered by the Defender on the complaint or on
considering it upon own initiative shall not be subject to appeal.
Article 20. Accepting the complaint for consideration
1. The Defender shall render a decision on accepting the
complaint for consideration where the information contained in the complaint
attest to the alleged violation of human rights or freedoms and where the
conditions prescribed by this Law for a complaint to be subject to
consideration by the Defender are met.
2. (lost its legal force)
3. Together with rendering a decision
on accepting the complaint for consideration, the Defender shall notify the
complainant that lodging a complaint with the Defender does not suspend the
deadlines prescribed for applying to the competent body or court to restore the
violated rights and freedoms.
Article 21. Not considering the complaint
1. The Defender shall render a decision not to consider the
complaint where the solution of the issue raised in the complaint goes beyond
the scope of powers of the Defender or there are grounds provided for by this
Law for not considering the complaint.
2. The Defender shall have the right not to consider anonymous
complaints, as well as complaints lodged after one year following the day the
applicant has learnt or should have learnt about the violation of his/her rights and freedoms, except
for cases when the Defender considers the reasons for missing the deadline
valid. The complaint shall not be considered if it appears that information
about the identity of the complainant was false.
3. The
Defender shall have the right to not consider the complaints which do not
contain claims or do not attest to alleged violation of human rights or
freedoms, or it is not clear from the contents of the complaint which state or
local self-government body, organisation or the official or representative
thereof has violated the right of the complainant. The complaint is not
considered, and the consideration initiated in connection with the complaint is
terminated also when the issue raised during the analysis or consideration of
the complaint has been resolved, the person has appealed to the court with the
same issue raised, when there is a final judicial act of the court on the same
issue, or the person, whose rights had been allegedly violated as mentioned in
the complaint, has deceased or a court decision declaring him missing or dead
has entered into legal force.
4. The Defender shall not consider the complaint also in case
the requirements set forth for complaint, prescribed by this Law, are not
observed, or the complainant has applied to the Defender with a request not to
take any actions with regard thereto or not to consider it.
5. Rendering a decision on not considering the complaint, the
Defender explains to the person who filed the complaint the grounds for
refusing to consider the complaint, as well as the powers of the defender and
the procedure provided for by law for contacting the defender.
6. Where the person who filed the
complaint re-submits the complaint with more detailed information after the
Defender's decision to refuse to consider the complaint, and if the Defender
believes that the complaint with new information indicates an alleged violation
of rights and freedoms, the Defender renders one of the decisions specified in
Article 19 of this Law.
Article 22. Presenting to the complainant possible means for the protection
of his or her rights and freedoms
1. The Defender shall render a
decision on presenting to the complainant possible means for the protection of
his or her rights and freedoms, where the lodged complaint is not subject to
consideration, yet the examination of the complaint indicates that it is
necessary to provide a detailed explanation to the interested person with
respect to the possible means for exercising the rights and freedoms.
2. A copy of the decision is sent to the person who filed the
complaint, indicating in a separate annex to this decision all the possibilities
related to the protection of rights and freedoms that the person has not used
or may use.
Article 23. Referring the complaint for consideration to another body or
organisation
1. Where the issue raised in the complaint is of such nature
that it may also be settled by another state or local self-government body,
organisation or an official or representative thereof, and where the issue
raised in the complaint has not been previously considered by that body or
organisation, the Defender may — upon the written consent of the complainant —
refer it thereto for the purpose of consideration thereto and within reasonable
time regularly follow the course of consideration thereof.
2. In the case referred to in paragraph 1 of this Article, the
Defender shall — upon the consent of the complainant — render a decision on
referring the complaint for consideration to the public body, local
self-government body or organisation or the official thereof within whose
powers the disposition of the complaint on the merits falls.
3. In case of rendering a decision on referring the complaint
for consideration to another body or organisation, as prescribed by this
Article, the complainant shall be informed in writing, by sending a copy of the
decision, on the complaint having been referred for consideration to another
body.
Article 24. Powers of the Defender in the course of examination or
consideration of a complaint
1. In the course of examination or consideration of a
complaint, the Defender shall, within the scope of his or her powers, be
authorised to:
1) visit, in an unimpeded manner, any
state or local self-government body or organisation, including military units,
as well as places of deprivation of liberty;
2) request and receive from any state
or local self-government body or an official thereof necessary materials,
documents, information or clarifications relating to the complaint or to the
issue being considered upon own initiative, as well as assistance during visits
made to those institutions;
3) receive from the competent state or
local self-government body or an official thereof, except for courts and
judges, clarifications concerning issues arising in the course of
consideration;
4) visit, in an unimpeded manner, the
organisations referred to in Article 15 of this Law in the course of
considerations initiated in cases of alleged violation of human rights and
freedoms by these organisations, request and receive from competent bodies
representing these organisations the necessary information, clarifications, materials
and documents relating to the complaint or the issue
5) apply to competent bodies or
organisations so as to conduct expert examination related to circumstances
subject to clarification based on the complaint or in relation to the issue
under consideration upon own initiative and receive the opinions drawn up as a
result thereof. The financial expenses incurred for conducting the expert
examinations and providing the opinions shall be covered by the funds of the
State Budget;
6) become familiar with those cases on
criminal, civil, administrative, disciplinary and other offences, the acts with
regard to which have entered into legal force, as well as with the materials
with regard to which the initiation of criminal cases has been rejected or
criminal proceedings have been discontinued; receive these via electronic or
other data carrier;
7) apply to the bodies of judicial
authorities responsible for analysis of the judicial practice to receive
clarifications of consultative nature regarding legal issues arising in the
judicial practice as well as for submitting recommendations on the improvement
of the judicial practice;
8) to apply to a competent authority to
implement special protection measures defined by the Criminal Procedure Code of
the Republic of Armenia to the whistleblowers and persons affiliated with them;
9) to apply to a competent state or
local self-government body, official or organisation, proposing to take
measures to protect and restore the whistleblower's violated rights.
2. Upon the written decision of the Defender, the powers
provided for by points 1-6 of paragraph 1 of this Article may be exercised also
by persons holding office within the Staff thereto.
3. Information containing state or other secret guarded by law
may be made available, as prescribed by law, for familiarisation by the
Defender or the person specifically authorised thereby for that purpose.
4. The Defender shall not have the right to intervene in
judicial proceedings or in the exercise of the powers of judges in a specific
case. He or she may request information from the Judicial Department where it
is related to the exercise of powers provided for by points 6 and 7 of
paragraph 1 of this Article, as well as to drawing up an annual communication
or public report, without intervening in the proceedings in a specific case.
Article 25. Relations
of the Defender with state and local self-government bodies and organisations
in the course of consideration of a complaint or consideration initiated upon
own initiative
1. When examining or considering a complaint, as well as
carrying out consideration upon own initiative, the Defender is obliged to
provide the state or local self-government body, organisation or the official
or representative thereof, whose decision or action (inaction) is being
appealed, with an opportunity to furnish clarifications on the complaints and
results of the examinations conducted, as well as substantiate their positions.
2. The requests for submitting information or clarifications
or materials or documents may be addressed to more than one body. As a result
of different clarifications received with regard to the consideration of the
complaint, prior to rendering the final decision, the Defender may apply to the
bodies referred to in this Article or the representatives thereof, with the
provisional results of the consideration.
3. Based on the results of examination and analysis of the
information on human rights and freedoms, the Defender shall have the right to
provide clarifications of advisory nature and recommendations to the bodies
referred to in this Article and the officials thereof, for the purpose of
summarising the results of the examination.
Article 26. Decisions
rendered by the Defender as a result of consideration of a complaint or consideration
upon own initiative
1. As a result of consideration of a complaint or
consideration initiated upon own initiative, the Defender shall render one of
the following decisions:
1) on existence of a violation of human
rights or freedoms, where violation of human rights or freedoms by a state or
local self-government body, an official thereof or an organisation has been
revealed in the course of consideration of the complaint;
2) on absence of a violation of human
rights or freedoms, where no violation of human rights and freedoms by a state
or local self-government body or an official thereof or an organisation has
been revealed in the course of consideration of the complaint;
3) on filing an action before the court
on declaring as fully or partially invalid the normative legal acts —
contradicting the law and other legal acts — of a state or local
self-government body or an official thereof which has violated human rights or
freedoms, where the state or local self-government body or the official
thereof, having committed the violation, fails to fully or partially declare
its relevant legal act as invalid within the prescribed deadline;
4) on terminating the consideration of
the complaint, where grounds provided for by this Law for not considering the
complaint or for terminating the consideration have been revealed in the course
of consideration of the complaint.
2. In case of rendering the decision referred to in point 1 of
paragraph 1 of this Article, the Defender shall suggest the state or local
self-government body or the official thereof or the organisation, having
committed the violation, to eliminate the violation within a reasonable time,
indicating the necessary measures for restoration of the human rights and
freedoms.
3. The Defender shall send a copy of the decision on the
complaint, referred to in paragraph 1 of this Article, to the complainant
within five days after rendering the decision. The decision of the Defender may
not impede the protection by a person of his or her rights and freedoms through
other means not prohibited by law.
4. The Defender shall be obliged to send — within five days
after rendering the decision — a copy of the decision on the complaint,
referred to in points 1 and 3 of paragraph 1 of this Article, to the state or
local self-government body, the official thereof or the organisation the
decision or action (inaction) of which has been appealed. The state or local
self-government body, the official thereof or the organisation which has
received the decision of the Defender, referred to in points 1 and 3 of
paragraph 1 of this Article, shall be obliged to inform the Defender in writing
on the measures undertaken, within the shortest possible time but no later than
within 30 days after receiving it.
5. In the case referred to in point 1 of paragraph 1 of this
Article, where there are grounds provided for by law or another legal act, the
Defender may recommend the competent state or local self- government body to
subject to liability the official upon whose decision or action (inaction) the
human rights and freedoms have been violated. In addition to the fact of
subjecting to liability, the Defender may propose a type of disciplinary
measure. The competent state or local self-government body or public officials
shall be obliged to consider recommendations of the Defender and within the
deadline prescribed by paragraph 4 of Article 26 of this law to inform the
Defender. In case a type of disciplinary measure proposed by the Defender is
not applied or in case of not subjecting the person to disciplinary
responsibility the component public official shall be obliged to provide
respective justification. In case of revealing violation of human rights and
freedoms by an organisation, where there are grounds provided for by law or
another legal act, the Defender shall apply to competent administrative bodies
with a relevant recommendation to subject to liability.
6. The Defender may publish through mass media special
information on the state or local self-government body, the official thereof or
the organisation which has not responded to the recommendation of the Defender
or which has failed to implement or has not duly implemented the measures
envisaged by the recommendation, together with or without the response provided
by the state or local self-government body, the official thereof or the
organisation with respect to the recommendation of the Defender.
CHAPTER 5. ACTIVITIES OF THE DEFENDER IN SEPARATE AREAS
Article 27. The Defender as the National Preventive Mechanism
1. The objective of the Defender's activities as the National
Preventive Mechanism shall be the prevention of torture and other cruel,
inhuman or degrading treatment in places of deprivation of liberty stipulated
in paragraph 4 of Article 28 of this law.
2. For the purpose of ensuring the performance of the
functions of the National Preventive Mechanism, a separate structural
subdivision shall be established within the Staff of the Defender.
Article 28. Powers of the Defender as the National Preventive Mechanism
1. As the National Preventive Mechanism, the Defender shall be
entitled to:
1) make regular, as well as ad hoc
visits to places of deprivation of liberty, including of his or her choice
buildings or structures adjunct thereto for the purpose of preventing torture
and other cruel, inhuman or degrading treatment or punishment. The Defender
shall not be obliged to inform in advance on the time and purpose of the
visits;
2) visit in a confidential and
unimpeded manner, persons of his or her choice held in places of deprivation of
liberty, as well as have conversations in private with them, the staff members
of the corresponding institutions or any other person in the place in question,
where necessary engage an interpreter, use technical means. Conversations in private
shall not be subject to intervention or wiretapping by anybody or a third
person;
3) submit recommendations to competent
bodies and organisations for the purpose of improving the conditions of
detention at any place of deprivation of liberty, as well as preventing torture
and other cruel, inhuman or degrading treatment or punishment;
4) receive information on the number
and location of the places of deprivation of liberty, as well as the number of
persons held therein;
5) receive information and
clarifications on the treatment and conditions of persons held in places of
deprivation of liberty, as well as on any other issue necessary for exercising
the powers thereof;
6) get familiar with all the documents
necessary for exercising the powers of the Defender, obtain the copies thereof;
7) submit recommendations to the
competent bodies on legal acts or draft legal acts;
8) exercise other powers prescribed by
this Law.
2. Information obtained in the capacity of the National
Preventive Mechanism shall be protected. Personal data shall not be published
without a written permission of the person.
3. As the National Preventive Mechanism, the Defender shall
maintain regular contact with the United Nations Subcommittee on Prevention of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well
as other relevant international organisations, including by means of exchange
of information and meetings with them.
4. Within the meaning of this Law, the places of deprivation
of liberty shall be:
1) places for holding of arrestees and
detainees;
2) penitentiary institutions;
3) psychiatric organisations;
4) garrison disciplinary isolators;
5) vehicles envisaged for transferring
persons deprived of liberty;
6) any other place, where upon the
decision, order or instruction of a state or local self- government body or
official, with the consent or permission thereof, a person has been deprived or
may be deprived of liberty, as well as any such place which a person may not
freely leave without the decision or permission of the court, administrative or
other body or official.
5. For the purpose of receiving professional assistance in the
capacity of the National Preventive Mechanism, based on the requirements set
forth in the announcement thereon made on the official website or through other
public sources, the Defender may engage independent specialists and (or)
representatives of non-government organisations, who acquire the status of an
expert of the National Preventive Mechanism.
6. The experts referred to in paragraph 5 of this Article
shall be engaged in the activities of the National Preventive Mechanism based
on the corresponding contract concluded with them. The remuneration for their
work is carried out in accordance with the procedure established by the
contract, at the expense of the state budget, from the funds allocated to the
Defender's Office for this purpose. The rules of procedure for the experts of
the National Preventive Mechanism, as well as the code of conduct thereof shall
be prescribed by the Defender.
7. The coordinator of the National
Preventive Mechanism of the Defender's Office, the civil servants and experts
of the division of the National Preventive Mechanism may carry out functions
aimed at the fulfilment of the powers assigned to the Defender by part 1 of
this article only on the basis of a written decision of the Defender, in the
manner and scope provided by that decision
Article 29. Powers of the Defender with regard to improving normative legal
acts
1. The Defender shall have the right to submit a written
opinion on draft normative legal acts regarding human rights and freedoms prior
to their adoption to the relevant body.
2. In all the cases where the Defender reveals during his or
her activities that issues relating to the human rights and freedoms are not
regulated by law or any other legal act or are not fully regulated, the
Defender may submit to the body adopting the legal act a relevant
recommendation, indicating the necessity and the extent of making amendments or
supplements to the legal act.
3. The body having received the recommendation provided for by
paragraph 2 of this Article shall be obliged to consider it and inform the
Defender on the results thereof within the deadline stipulated in paragraph 4
of Article 26.
4. The Defender has the right to apply to the Constitutional
Court on matters of compliance of laws, decisions of the National Assembly,
decrees and orders of the President of the Republic, decisions of the
Government and the Prime Minister, sub-legislative normative legal acts, with
the provisions of Chapter 2 of the Constitution.
5. Professional training of the staff and educational programs
on human rights are carried out by the Defender through the relevant department
of his or her Office or other institution. The Defender can also conduct
trainings of the stakeholder bodies and organisations on issues related to
human rights and freedoms.
Article 30. The powers of the Defender in the area of the protection of
child rights
1. Pursuant to paragraph 3 of Article 2 of this Law the
Defender shall have the powers to:
1) conduct monitoring of compliance of
the legislation to provisions of the UN Convention on the Rights of a Child
adopted on 20 November 1989;
2) carry out regular, as well as ad hoc
unimpeded visits to childcare and child protection institutions as well as
comprehensive educational institutions. The Defender shall not be obliged to
notify about the time and purpose of the visit in advance;
3) present public reports related to the
child rights;
4) present recommendations to the
competent bodies in relation to the improvement of legal acts related to
children rights or the drafts thereof or practice;
5) сarry out other powers prescribed by
this law.
2. Civil servants of the Defender's Office may perform
functions aimed at the fulfilment of the powers assigned to the Defender by
paragraph 2 of part 1 of this article only on the basis of a written decision
of the Defender, in the manner and scope provided by that decision.
Article 30.1 The Powers of the
Defender in the area of the protection of persons with disabilities rights.
1. Pursuant to paragraph 4 of Article 2 of this Law the
Defender shall have the powers to:
1) conduct monitoring of compliance of
the legislation to provisions of the UN Convention on the Rights of Persons
with Disabilities (CRPD) adopted on 13 December 2006;
2) carry out regular, as well as ad hoc
unimpeded visits to institutions where persons with disabilities stay. The
Defender shall not be obliged to notify about the time and purpose of the visit
in advance;
3) present ad hoc public reports
related to the rights of persons with disabilities;
4) present recommendations to the
competent bodies in relation to the improvement of legal acts related to the
rights of persons with disabilities or the drafts thereof or practice;
5) carry out other powers prescribed by
this law.
Article 30.2
The Powers of the Defender in the protection of whistleblowers
1.The Defender shall carry out monitoring and data collection
in the field of whistleblower protection, as well as shall monitor the
protection of the rights and freedoms of whistleblowers by state and local
self-government bodies and officials, organisations, and promote the
restoration of the rights and freedoms of whistleblowers.
2. In order to protect whistleblowers, the Defender shall be
authorised to:
1) monitor the implementation of
protective and rehabilitation measures;
2) monitor and evaluate the
effectiveness of whistleblower protection mechanisms;
3) publish public reports on the implementation of
whistleblower protection;
4) exercise other powers defined by
this law.
3. The Human Rights Defender shall have the right to provide
counselling at the request of the whistleblower or persons affiliated with him
or her in a consultative manner and to present the person with the
possibilities of protecting his or her rights and freedoms.
4. The information and personal data obtained within the scope
of counselling shall not be subject to
publication without the written consent of the person.
5. The Human Rights Defender shall summarise and publish the
report and statistics related to whistleblowing in his or her annual report,
based on the relevant statistical data of state and local self-governing bodies
related to whistleblowing.
6. The report and statistics shall be summarised and published
on the website of the unified electronic reporting platform ( www.azdararir.am ) and on the official website of
the Human Rights Defender ( www.ombuds.am ).
7. The report and statistics shall at least contain information
on the reports submitted by the whistleblowers to the competent authorities (by
types and forms) and the protection provided to the whistleblowers.
CHAPTER 6. ANNUAL COMMUNICATION AND REPORTS OF THE DEFENDER,
PARTICIPATION OF THE DEFENDER IN THE ACTIVITIES OF STATE AND LOCAL
SELF-GOVERNMENT BODIES AND THE COUNCIL UNDER THE DEFENDER
Article 31. Annual communication and reports of the Defender
1. During the first quarter of each year, the Defender shall
present to the National Assembly the annual communication on the activities
thereof during the previous year, as well as on the state of protection of
human rights and freedoms. The procedure and the deadlines for presenting the
annual communication by the Defender to the National Assembly shall be
prescribed by the Constitutional Law "Rules of Procedure of the National
Assembly".
2. The structure of the annual communication of the Defender,
the scope of issues included therein, as well as the format of recommendations
submitted to state and local self-government bodies, organisations shall be
determined by the Defender. The latter shall submit the communication also to
the competent state bodies and non-government organisations and also publish it
through mass media.
3. In relation to specific issues forming public resonance or
gross violations of human rights, the Defender may also prepare ad hoc public
reports or communications, which may include not only cases and facts on the
violation of rights but also recommendations on the improvement of normative
legal acts relating to the human rights and freedoms.
4. The Defender shall ensure the publicity of the
communications and the reports.
5. As the National Preventive Mechanism, the Defender shall,
during the first quarter of each year, present a separate report on the
activities undertaken during the previous year.
Article 32. Participation
of the Defender in the activities of state and local self- government bodies
1. The Defender can participate in the sessions of the
Government based on the invitation of the Prime Minister, and also has the
right to be present and speak at the sessions of state and local
self-government bodies, in accordance with the established procedures of the
sessions of those bodies, if issues related to human rights and freedoms are
discussed.
2. The Defender in his status may not deliver a statement
during court sessions. The Defender or the representative thereof may be
present at public court sessions for observation purposes.
3. The Defender shall have the right to be present also at the
sittings of the National Assembly, deliver a speech as prescribed by the
Constitutional Law of the Republic of Armenia "Rules of Procedure of the
National Assembly", where issues regarding human rights and freedoms are
being considered.
Article 33. Council under the Defender
1. The Defender may establish councils adjunct thereto,
composed of representatives of non-governmental organisations and independent
specialists having the necessary experience and knowledge in the field of human
rights.
2. The members of the Council shall be invited by the
Defender.
3. The procedure for formation and rules of procedure of the
Council shall be defined by the Defender.
CHAPTER 7. PECULIARITIES OF STATE SERVICE WITHIN THE STAFF
OF THE DEFENDER
Article 34. Legal acts regulating state service within the Staff of the
Defender
1. Relations pertaining to the appointment to and dismissal
from the office of state service within the Staff of the Defender, conferment
of class ranks, holding a competition for filling vacant positions, training
courses for state servants, and inclusion of state servants in the personnel
reserve, evaluation of their performance, their substitution and official
trips, granting leaves, social guarantees for state servants and other
relations pertaining thereto shall be regulated by this Law, as well as by the
Law of the Republic of Armenia "On judicial service" where
peculiarities regulating these relations are not prescribed by this Law.
2. (lost its legal force)
3. The labour relations of civil servants are regulated by the
labour legislation of the Republic of Armenia, if the peculiarities regulating
these relations are not defined by this law and other legal acts.
4. The activities of experts in the Defender’s Office,
specialists engaged by the Defender, and persons performing technical
maintenance and other tasks and functions on a contractual basis, is not
considered civil service
Article 35. State service and class ranks within the Staff of the Defender
(lost its legal force)
Article 36. Staff of the Defender
1. The Defender forms his or staff by confirming the staff
structure.
2. The Defender’s Office ensures the full and effective
implementation of the Defender’s powers vested by the Constitution and this
law.
3. The Staff of the Defender shall be composed of two
departments, the Subdivision of the National Preventive Mechanism, the
Secretariat, regional and other subdivisions established based on the decision
of the Defender, as well as advisors, assistants and press secretary of the
Defender. Departments, Subdivision of the National Preventive Mechanism and
regional subdivisions are separate subdivisions of the Staff of the Defender.
4. Based on the decision of the Defender, persons holding
office within the Staff of the Defender may act as representatives thereof at
the National Assembly and the Constitutional Court.
Article 37. Secretariat of the Staff of the Defender
1. The Secretariat consists of the Secretary General, civil
servants, as well as the technical maintenance personnel.
2. The structure of the Secretariat shall include its
structural subdivisions prescribed by law and other legal acts.
3. The Secretary General shall be appointed to and dismissed
from office by the Defender.
4. The Secretariat shall operate on the basis of the
legislation of the Republic of Armenia and the Statute approved by the
Defender.
5. The Secretary General can acquire and exercise property and
personal non-property rights, and bear responsibilities within the limits of
his or her authority.
6. The Secretariat shall support the complete and effective
performance of the activities of the Defender, the subdivisions of the Staff
thereto, as well as that of advisors, assistants and the press secretary of the
Defender.
Article 38. Subdivisions of the Staff of the Defender
1. The subdivisions of the Staff of the Defender shall ensure
effective and complete exercise of the powers of the Defender, the functions
whereof shall be prescribed by the Defender.
2. The subdivisions of the Staff of the Defender shall perform
directly under the Defender.
3. The Statutes and the structure of the Staff of the Defender
shall be approved by the Defender.
4. Based on the decision of the Defender, regional
subdivisions of the Staff of the Defender may be established within the
administrative-territorial units of the Republic of Armenia.
Article 39. Administration and management of the Subdivisions and the
Secretariat of the Staff of the Defender
1. The administration of the subdivisions and the Secretariat
of the Staff of the Defender shall be carried out by the Defender. The Defender
shall:
1) manage, coordinate and supervise the
current activities of the subdivisions of the Staff of the Defender, ensure the
performance of the objectives and functions thereof;
2) issue orders, assignments subject to
compulsory implementation, render decisions;
3) approve and make changes to the
number of employees and the staff table of the Staff of the Defender;
4) approve and amend the job
descriptions of civil service positions, as well as, of other officials in the
cases established by law;
5) appoint to and dismiss from position
the state servants and persons holding other offices within the Staff of the
Defender, as well as apply incentive measures and impose disciplinary sanctions
thereon;
6) define the training, the procedure
of performance evaluation, standards and the form of the profile, the rules of
conduct of the persons holding a position in the Defender's Office, the
internal disciplinary rules, and the rules of procedure of the Office
(circulation of document);
7) On the basis of the Law on Civil
Service, it defines the procedure for the competition held to fill a vacant
civil service position in the Defender's Office;
8) upon his or her decision, send on an
official trip and grant a leave to civil servants and persons holding other
positions within the Defender’s Office;
9) define the composition of the ethics
committee, the order of activity and the scope of powers;
10) issue powers of attorney for acting
on behalf of the Defender, including powers with the right of substitution;
11) exercise other powers reserved thereto by the
Constitution and this Law.
2. The management of the Secretariat shall be carried out by
the Secretary General. The Secretary General shall:
1) support human resources policy,
financial-budgetary, logistical support related activities;
2) appoint to and dismiss from office
persons carrying out technical maintenance of the Secretariat, as well as apply
incentive measures and impose disciplinary sanctions thereon;
3) provide for the analysis and
summarisation of the activities of the Staff of the Defender;
4) carry out activities related to the
acceptance and registration of complaints addressed to the Defender, observance
of the deadlines thereof;
5) keep the personal files of state
servants;
6) ensure the operation of the official
internet web-site of the Defender;
7) ensure the implementation of
organisational activities required for the consultations, meetings, visits of
the Defender, as well as for training and official trips of state servants;
8) exercise other powers reserved thereto by law.
3. The management of a subdivision under the Staff of the
Defender shall be carried out by the Head of Subdivision. The Head of
Subdivision shall:
1) ensure the performance of functions
arising from the goals and objectives of the subdivision;
2) coordinate the implementation of the
required activities in the fields under responsibility thereof;
3) exercise supervision, in the areas
under responsibility thereof, over the execution of assignments of the
Defender, submit a report on the results to the Defender;
4) ensure, as prescribed by the
Defender, the document circulation related to the field under the
responsibility of the subdivision;
5) within the scope of the powers
thereof co-operate with state and local self- government bodies, organisations
and institutions;
6) act as the representative of the
Defender in relations with other bodies, organisations and citizens;
7) substitute the Defender in cases and
under the procedure prescribed by this Law;
8) exercise powers delegated by the Defender, in
accordance with paragraph 2 of Article 24 of this Law;
9) exercise other powers reserved
thereto by this Law.
Article 40. Remuneration of the Defender and state servants within the Staff
of the Defender
1. Relations related to remuneration
of the Defender, staff members holding discretionary offices and state servants
shall be regulated by the Law of the Republic of Armenia "On the
remuneration of persons holding public positions and public service
positions".
CHAPTER 8. FINAL AND TRANSITIONAL
PROVISIONS
Article 41. Final part
1.This Law shall enter into force on the tenth day following
the day of its official promulgation.
2. The Law of the Republic of Armenia HO-23-N of 15 November
2003 "On Human Rights Defender" shall be repealed upon the entry into
force of this Law.
3. Paragraph 5 of Article 16, paragraphs 5-7 of Article 28,
Article 33, as well as Chapter 7 shall enter into force as of 1 March 2017.
Till that the relevant provisions prescribed by 3 O -23-L Law of the Republic
of Armenia "On the Human Rights Defender" of 15 November 2003 shall
be in effect.
4. The powers of the Defender prescribed by this Law in
relation to consideration of violations of human rights and freedoms by
organisations shall be in effect as of 1 March 2017.
Article 42. Transitional provisions
1. The Defender shall, as prescribed by this Law, approve the
statutes and the structure of the Staff of the Defender within six months
following the entry into force of this Law.
2. Till the day of taking up the
office of the President of the Republic of Armenia elected in accordance with
the procedure prescribed in Article 125 of the Constitution as amended in 2015
class ranks prescribed by point 1 paragraph 3 of Article 35 of this law are
granted, lowered, as well as deprived by the President of the Republic of
Armenia upon the recommendation of the Defender.
The President of the Republic of Armenia
S. Sargsyan
14 January 2017
Yerevan
Հայերեն
