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
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 state service positions within the Staff of the Defender
(hereinafter referred to as "the state servant"), of appointing them
to and dismissing from position, conferring class ranks, organising and
managing the state service, as well as other relations pertaining thereto.
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.
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
instituted, as well as he or she may be deprived of liberty only upon the
consent of the National Assembly of the Republic of Armenia by at least three
fifth of the total number of parliament members.
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 Chairperson 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 Preventative Mechanism
cannot be less than the amount provided the year before. The funding from the
state budget is implemented in equal monthly installments 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 Preventative 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 instituted 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 the members of the Parliament, 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 members 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 judgment of conviction rendered
against him or her becomes final, a judgment 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
Chairperson 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.
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.
For the
purpose of protecting the rights and freedoms of another person, the
representative, legal successor, heir of that person as well as bodies of
guardianship and custody for the protection of the rights of children, legally
incapacitated or partially incapacitated people may apply to the Defender.
Legal representatives, persons authorised as prescribed by law, including
attorneys at law may act as a representative. Upon the request of the Defender
or the representative thereof, the representative of the person shall be obliged
to present the power of attorney, the advocate's licence, whereas the legal
successor and the heir shall be obliged to present a document attesting to the
fact of being the legal successor or the 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 or inequal 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, include 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 complaintant
or other persons.
2.
Data on the
applicant or any other person, which have 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 complaintant 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 complaintant 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.
Examination
of issues referred to in a complaint must not be carried out by the state or
local self-government body or the official thereof or organisation the decision
or action (inaction) of which is being appealed.
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 on not considering the complaint where the settlement
of the issue referred to in the complaint is beyond the scope of powers of the
Defender or where the grounds provided for by this Law for not considering the
complaint are present.
2.
The Defender
shall have the right to not 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 or 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 shall not be considered and the
consideration initiated with regard to the complaint shall be terminated also
in case the interested person has filed an action or complaint before the court
on the same ground and the same subject matter after having lodged the
complaint or there is a final judgment in regard to the same ground and the
same subject matter.
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.
When
rendering a decision on not considering the complaint, the Defender shall be
obliged to explain the complainant the grounds for not considering the
complaint, as well as the procedure provided for by law for the consideration
of the complaint.
6.
Where after
the Defender has rendered a decision on not considering the complaint, the
complainant lodges another complaint with more detailed information, and where
the Defender finds that the complaint with the new information attests to
alleged violation of rights and freedoms, the Defender shall render one of the
decisions referred to 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 andfreedoms.
2. The
Defender shall send a copy of the decision to the complainant, presenting in a
separate annex to the decision all the possible means for the protection of the
rights and freedoms of the complainant, which the person has not resorted yet
or may resort to.
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 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;
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 shall be 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 organization 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. Competent state or local
self-government body or public officials shall be obliged to consider
recommendations of the Defender and within 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 compenent 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 Preventative Mechanism shall be
protected. Personal data shall not be published without a written persmission
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. They shall be remunerated under the procedure defined by
the Defender, at the expense of the State Budget funds, from the financial
means allocated to the Staff of the Defender for that 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.
Powers
prescribed in paragraph 1 of this Article may be exercised by state servants
and experts of the Subdivision of the National Preventive Mechanism under the Staff
of the Defender solely based on the written decision of the Defender, in the
manner and to the extent provided for thereby.
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 there of
within the deadline stipulated in paragraph 4 of Article 26.
4.
The Defender
shall have the right to apply to the Constitutional Court of the Republic of
Armenia in regard to compliance of laws, decisions of the National Assembly,
orders and instructions of the President, decisions of the Government and the
Prime-Minister, by-laws with Chapter 2 of the Constitution.
5.
The Defender
may organise training for the staff thereto as well as for beneficiary 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 ad hoc
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)
carry out other
powers prescribed by this law.
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.
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
2.
During the
first quarter of each year, the Defender shall present to the National Assembly
of the Republic of Armenia 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 of the Republic of
Armenia shall be prescribed by the Constitutional Law "Rules of Procedure
of the National Assembly".
3.
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.
4.
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.
5.
The Defender
shall ensure the publicity of the communications and the reports.
6.
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
shall have the right to be present at the sittings of the Government of the
Republic of Armenia, and deliver a speech in accordance with the procedures
prescribed by the Government of the Republic of Armenia, as well as sittings of
the state and local self-government bodies and deliver a speech in accordance
with the procedures stipulated for sittings thereof, where issues regarding the
human rights and freedoms are being considered.
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 of the Republic of Armenia, 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.
Official
relations of state servants shall be regulated by the in-house disciplinary
rules approved by the Defender.
3.
Labour
relations of state servants shall be regulated by the labour legislation of the
Republic of Armenia where peculiarities regulating these relations are not
prescribed by this Law and other legal acts.
Article
35. State service and class ranks
within the Staff of the Defender
1.
State service
within the Staff of the Defender shall be considered a professional activity
performed for the purpose of ensuring the exercise of powers reserved to the
Defender by the Constitution of the Republic of Armenia and this Law. State
service within the Staff of the Defender shall be a special type of state
service prescribed by the legislation of the Republic of Armenia.
2.
Activities of
experts engaged by the Defender, specialists, and persons carrying out
technical maintenance related tasks and functions, and persons carrying out
other individual tasks and functions on contractual bases shall not be
considered as state service within the Staff of the Defender.
3.
State
servants shall be conferred with the following class ranks:
(1)
state servants
holding highest positions — class ranks of the 1st and 2nd class state
counselor of state service within the Staff of the Defender;
(2)
state
servants holding chief positions — class ranks of the 1st and 2nd class
counselor of state service within the Staff of the Defender;
(3)
state
servants holding leading positions — class ranks of the 1st and 2nd class
leading servant of state service within the Staff of the Defender;
(4)
state
servants holding junior positions — class ranks of the 1st and 2nd class junior
servant of state service within the Staff of the Defender.
4.
Class ranks of state service to all state
servants within the Staff of the Defender shall be conferred, their class rank
shall be lowered, as well as they shall be deprived of the class rank by the
Defender.
Article 36. Staff of the Defender
1.
The Staff of
the Defender shall be a state administration institution, having no status of a
legal person, whose functions are implemented by the Secretariat of the Staff.
2.
The Staff of
the Defender shall ensure complete and effective exercise of the powers of the
Defender reserved thereto by the Constitution of the Republic of Armenia, by
this Law and other legal acts, as well as the participation of the Defender in
civil legal relations.
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 Preventative 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 of the
Republic of Armenia and the Constitutional Court of the Republic of Armenia.
Article
37. Secretariat of the Staff of the
Defender
1.
The
Secretariat shall comprise the Secretary General, state servants, as well as
persons carrying out technical maintenance.
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
Secretariat may, within the scope of powers thereof, acquire and exercise
property and personal non-property rights, bear responsibilities, act as a
plaintiff or civil defendant in court.
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 subdivisions 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,
co-ordinate 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
the list of positions of state service within the Staff of the Defender and the
job descriptions for the positions of state servants;
(5)
appoint
to and dismiss from position the state servants and persons holding discretionary
offices within the Staff of the Defender, as well as apply incentive measures
and impose disciplinary sanctions thereon;
(6)
define
the procedure for training, performance evaluation of state servants, the
criteria and reference form, code of conduct of state servants, procedures for
conducting official investigation, case-management (document circulation),
keeping the personal files of state servants;
(7)
prescribe
the procedure for organizing a competition for filling vacant positions of
state service within the Staff of the Defender, for the formation of selection
boards, as well as the rules of procedure thereof;
(8)
upon his
or her decision, send on an official trip and grant a leave to state servants
and persons holding discretionary offices within the Staff of the Defender;
(9)
issue
powers of attorney for acting on behalf of the Defender, including powers with
the right of substitution;
(10)
exercise
other powers reserved thereto by the Constitution of the Republic of Armenia
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)
co-ordinate 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 remuneration of state servants".
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