Today,
the Human Rights Defender Mr. Arman Tatoyan applied to the Constitutional Court
to dispute the ban on journalists to take pictures and videos at the state
border, as well as other restrictions.
In
particular, the ban on photographing and filming in the border area has caused
problems for journalists, by not setting permission criteria or procedures. The
following regulation has also caused serious problems for the fact-finding
activities of the Human Rights Defender of Armenia.
The
application also disputes other restrictions on citizens (grazing animals in
the border area, directly approaching the borderline, communicating with border
guards, etc.).
I
have petitioned to suspend the disputed restrictions until the end of the trial
in the Constitutional Court, as well as to give priority to the examination of
the case.
This
refers to the restrictions outlined in Article 22.1 of the “Law on State
Border” of the Republic of Armenia, as well as to the recent amendments to that
Article.
The
following restrictions do not contain any exceptions and refer to the ban on
citizens to communicate with the border guard troops, and to talk to the
representatives of the border guards and the residents of the neighboring
state.
In
terms of human rights, the above-mentioned regulations of the law have become
problematic after the September-November 2020 war.
The
problem is that due to the state borders processes, many civilian communities
of the have become border communities, by appearing on the borderline.
According to the “Law on State Border” of the Republic of Armenia, the
borderline is a part of the border zone, which is adjacent to the state border
or in case the state border crosses any water area, then the shores of the
boundary waters, up to a width of one kilometer, while the border zone is the
area extending from the state border of the Republic of Armenia to depth of its
area, up to a width of five kilometers.
In
other words, as a result of the regulations of the law, the residents of the
border areas can be held accountable for various things in their daily lives,
e.g., for consuming any kind of alcohol during a party or some other ceremony,
or for taking photos in their own house or yard. In another example, due to the
border situation, there are many cases when the residents have to communicate
with the servicemen of the border guard troops of Armenia who serve in the
vicinity of their communities, which, under the current regulations, is another
basis for holding a person accountable. According to the current law, a person
is held accountable for communicating with Azerbaijani servicemen, which has
also become inevitable after the war.
Another
problem is that due to the restrictions, the Human Rights Defender of Armenia
is not able to carry out his activities to the full extent of his mandate, as
it is prohibited to take pictures or videos without receiving permission from
relevant authorities when conducting fact-finding activities in accordance with
the complaints and alarming-calls of the citizens living in the border area,
which is the basis of the internationally guaranteed fact-finding activities of
the Human Rights Defender on human rights violations in conflict and
post-conflict situations and impacts the reliability and objectivity of the
collected facts, as well as the highest international "A" status of
the Defender of the Republic of Armenia.
The
activities of the Human Rights Defender in this area are unhindered.
Moreover,
the regulations of the law put the Defender in a very unequal position in the
international arena, especially in comparison with the Commissioner for Human
Rights of Azerbaijan (Ombudsperson), as the latter, unlike the Ombudsman of
Armenia, is not restricted by any legislative obstacle in carrying out
fact-finding activities.
In
fact, the situation in the country clearly demonstrates that the norms of this
law are not applied or are applied only partially, inevitably leading to
discrimination. For example, in Vorotan village of Goris community of Syunik
province, the actions of the Azerbaijani armed forces are constantly filmed or
photographed by citizens, journalists, and various officials, but they are not
always prohibited or held accountable for those actions. It is practically
impossible to ensure complete control over this regulation.
On
the other hand, the approach towards Armenian journalists is discriminatory in
terms of letting them approach the borderline and conduct professional work, as
it is unknown what criteria need to be met for them to get permission to take
photos. Armenian media outlets often face many problems. Such a discriminatory
approach becomes apparent when it comes to international journalists working in
those areas. While acknowledging the important role and significance of
international journalists in international coverage of the situation on the
state border of the Republic of Armenia, it should be clearly stated that
allowing only journalists of international media to approach the borderline is
discriminatory against those media outlets operating in Armenia. Moreover, the
Armenian media do not have a clear idea, for example, to whom they should
apply, in which manner, and how they can get permission.
But
one should not forget that the work of a journalist in conflict and
post-conflict situations has significance in terms of protecting human rights
and preventing violations. It is especially relevant now and refers to the
state border of the Republic of Armenia.
It
should be noted that the draft law on the restrictions was not sent to the
Human Rights Defender of Armenia to receive their opinion on the matter. The
Defender expressed their position at his own initiative, which was also not
taken into consideration. Failure to submit drafts to constitutional bodies
endowed with constitutional functions, including the Human Rights Defender of
Armenia, clearly reduces or jeopardizes the degree of constitutionality or
legitimacy of the future act.
In
any case, by virtue of the Constitution and the Constitutional Law “On the
Human Rights Defender”, the provisions of the “Law on State Border” of the
Republic of Armenia cannot be applied to the Human Rights Defender of Armenia,
as they have a higher legal force. Regarding other restrictions, it is fundamental
that the law must comply with the principles of legal certainty and
proportionality.
In
the application, we substantiated with concrete facts that the existing
restrictions lead to disproportionate state interference with the
constitutional rights to personal freedom, freedom of movement, freedom of
expression, and the right to apply to the Human Rights Defender and receive
assistance, and also lead to violation of the constitutional principles of
legal certainty and proportionality.
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