The
Government, and specifically the Ministry of Justice, has a direct obligation
to ensure that detained members of the Council of Elders, elected during the
local self-government elections,
participate in the first sessions, and are not deprived of their
constitutional rights. this refers to the first session, during which the Heads
of the community will be elected.
Complaints
have been addressed to the Human Rights Defender in particular from Mr. Aram
Harutyunyan and Mr. Mamikon Aslanyan, who participated in the local
self-government elections and were elected as members of the Council of Elders
of Vartenis and Vanadzor respectively. They are in the penitentiary
institutions of the Ministry of Justice as detainees against whom criminal
cases have been filed.
Both
of them complained that their detentions were intended to prevent them from
participating in the first sessions of the Council of Elders, in which case in
both cases the votes would be distributed in such a way that neither Mr. Aram
Harutyunyan nor Mr. Mamikon Aslanyan would be elected as Heads of their
respective communities. Moreover, they will be deprived from their voting
rights; that is their right to vote and/or get elected.
In
addition, the Office of the Human Rights Defender registered alarming-calls about the pressure
on the mentioned members of the Council of Elders after the detentions. They
are portrayed in places, in their communities, as people who have already
committed a crime and have been deprived of the opportunity to become Heads of
their communities. This was specifically mentioned by the complainants.
Based
on the complaints of Mr. Mr. Aram Harutyunyan and Mr. Mamikon Aslanyan, the
private interviews held with them in the penitentiary institutions, and the
analysis of the necessary documents, the Human Rights Defender registers the
following.
First,
the presumption of innocence is guaranteed to those members of the Council of
Elders as a mandatory component of the right to a fair trial. Therefore, the
way they are treated can not violate this constitutional and international
requirement.
In
addition, the right to vote of every citizen of Armenia is guaranteed by the
Constitution, and the Constitution itself lists the exhaustive range of
permissible restrictions on that right.
According
to Article 48(4) of the Constitution of the Republic of Armenia, "Persons
who have been declared incompetent by a court decision that has legally entered
into force, as well as those who have been convicted by a court decision that
has legally entered into force to have committed grave crimes intentionally and
are serving their sentence, do not have the right to vote or get elected, and
to participate in referendums. Persons convicted of other crimes by a court
decision that has entered into force, and are serving their sentence, also do
not have the right to be elected."
Therefore,
the Constitution stipulates at least two mandatory conditions for depriving a
citizen of the right to vote or get elected,
which must exist at the same time: 1) being convicted; 2) serving a
sentence. In the case of the right to be elected, the Constitution has gone
further, stipulating protection from the deprivation of that right in case of
any crime.
Pursuant
to Article 42.2(1) of the Electoral Code
(which has the status of Constitutional Law), "The election of the Head of
the community is held during the first session of the newly elected Council of
Elders."
In
other words, the Constitution and the Electoral Code stipulate that in case of
local self-government elections, the final exercise of the citizen of Armenia
to be elected is not limited to being elected a member of the Council of
Elders- it is resolved through the
election of the Head of the community during the first session. In other words,
the first session for the election of the Head of the community is an integral
part of the process of exercising the citizen's right, which is guaranteed by
the Constitution.
In
the case of Vardenis and Vanadzor communities, the conditions required by
Article 48 of the Constitution are not met: not even one of the mandatory
conditions do not exist: 1) there is no convicted person, 2) and there is no
serving of any sentence. The current situation is also problematic from the
point of view of full realization of Armenian citizens' constitutional right to
vote.
The
issue is the fact that those citizens who were detained as a result of criminal
cases are the leaders of political forces, and who have participated in the
elections as candidates for Heads of their respective communities.
That
is, citizens have elected them with the expectation that they would be the
Heads of their respective communities. In other words, the exhaustive
realization of the electoral rights of the citizens would be accomplished if
the detained members of the Council of Elders participate in the firste session
during which the Head of the community would be elected.
This
is the essence of representative democracy. This is how the system of democracy
is formed in the country as a result of the right to vote. The same principle
applies to parliamentary elections and the formation of a Government.
Therefore,
in order to fully guarantee the constitutional right of the members of the
Council of Elders Mr. Aram Harutyunyan (Vardenis) and Mr. Mamikon Aslanyan
(Vanadzor) to be elected, the Government of Armenia, in particular, the
Ministry of Justice, must ensure their participation in the first sessions of
the Councils of Elders of their respective communities, exercising the right to
vote by priority, with the following principle:
By
releasing them from detention, which will ensure their full participation in
the sessions of the Councils of Elders. Otherwise, the legitimacy of their
further detention in the current situation requires the criminal prosecution
bodies and courts to overcome a high threshold and justify with high standards,
ensuring
their physical participation in the Councils of Elders, even if still detained,
ensuring their participation in council
meetings and exercising their right to be elected by Zoom, Skype, or any other
means (while still in detention).
Failure
to comply with any of the above points will violate the constitutional right to
be elected, and it would be problematic in terms of the full exercise of the
constitutional right to vote as well. Moreover, the issue is urgent considering
the date of the first sessions of the Council of Elders.
As
the mentioned members of the Council of Elders are in a state of deprivation of
liberty (precautionary measure: detention), that is, in the penitentiary
centers of the Ministry of Justice, then the exercise of their constitutional
right to be elected must be ensured by the Government of Armenia, in
particular, by the Ministry of Justice, regardless of the attitude of the
criminal prosecuting body or the court that granted/satisfied the motion for detention.
In
other words, the solution of this issue cannot depend on the will of the
criminal prosecuting bodies investigating, because it is not related to the
subject of the criminal case under investigation; besides, it is about the electoral
rights guaranteed by the Constitution of Armenia, from which there are no grounds
to deprive in any specific situation.
This
statement of the Human Rights Defender of Armenia will be sent to the OSCE
observation mission, other international organizations, observer organizations,
as well as to the Central Electoral Commission.
That
statement will be made in the text of the official inquiry of the Human Rights
Defender of Armenia and will be sent to the Minister of Justice of Armenia,
with a request for urgent explanations. In addition, the letter will be sent to
the Prosecutor's Office according to its mandate.
Mr.
Arman Tatoyan
The
Human Rights Defender of Armenia
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