The draft Amendments to the Constitution, which propose around 250 amendments, touch upon a broad spectrum of fundamental rights and freedoms, as well as safeguards of social and economic rights. The entire process of initiating the Constitutional Amendments was justified by the need of improvement of safeguards for protection of fundamental rights and freedoms. The final text, as adopted by the National Assembly on October 5, 2015, resolved some of civil society’s key concerns with lack of safeguards for fundamental rights and freedoms. Nevertheless, we believe the standard for protection of such rights as the right to personal liberty, respect for privacy of communication, right to fair trial (inadmissibility of evidence), presumption of innocence and right to marry was reduced as compared to standard of the current Constitution.
As stated, apart from being numerous and in many cases quite significant, the proposed amendments pertain to diverse areas that are intrinsically unrelated. Thus, the scope of social guarantees has little to do with the method of regulating an independent judiciary, the electoral system, guarantees of fundamental human rights or the form of or system for forming the central or local governments. Yet, under the government’s plan, Armenians will only have one up-or-down vote on all these changes. This robs them of their right to express their views on clearly defined issues, which is particularly problematic in that this referendum concerns main law of the land. In its decision in the case of the Russian Conservative Party and Others vs Russia which was related to alleged violations of the right to suffrage in Russian Federation parliamentary elections, the European Court of Human Rights (ECHR) clearly stated that “…free suffrage comprises two aspects: freedom to form an opinion and freedom to express that opinion.” Similarly, the Venice Commission’s Code of Good Practice on Referendums states that “An even more stringent requirement of free suffrage is respect for unity of content. Electors must not be called to vote simultaneously on several questions without any intrinsic link, given that they may be in favor of one and against another. Where the revision of a text covers several separate aspects, a number of questions must therefore be put to the people.” Considering this, we believe that the authorities need to postpone the referendum and alter its format so that the people are given the freedom to express their opinion in a meaningful and accountable manner.
FUNDAMENTAL RIGHTS AND FREEDOMS
Right to personal liberty
The Draft (Art.27) limits the right of arrested person to notify on his/her location and on the fact of arrest
The draft proposes additional restrictions on the right to liberty as compared to the provision of the current Constitution (Art.16). Currently, an arrestee/detainee has a right to notify another individual of the fact of arrest. While this right is still in the proposed Amendments, there’s also a limitation allowing a broad discretion to authorities to delay exercise of this right. Namely, the article says the right to notification can be delayed only by law, procedure and timing for the purposes of prevention and detection of crime.
Respect for privacy of communication
The article provides a wide discretion to the authorities to limit the privacy of communication
The article (Art.33) says that the right for privacy of communication can be limited by a court order in the exception of cases when such limitation is necessary for protection of state security and conditioned on the special status of the communicators as provided by law.
Inadmissibility of Evidence
The Draft Amendments lower the bar for application of exclusionary rule
The current Constitution (Art.22) provides that the use of evidence obtained in violation of law shall be prohibited. The Draft (Art.63) provides that the use of evidence obtained in violation of fundamental rights or evidence undermining the right to a fair trial shall be prohibited.
The Presumption of Innocence
The Draft Amendments (Art.66) lower the standards of the safeguards of being presumed innocent
The current Constitution (Art.21) provides two important safeguards, which are now removed. Namely, according to the current Constitution “a defendant is not required to prove his innocence” and “Doubts which are not confirmed are interpreted in favor of the defendant”. Both of these safeguards are not mentioned in the proposed amendments.
Freedom to Marry
The Draft Amendments (Art.35) curtail the safeguard of the freedom to marry by providing the “moral interest” as a ground for restriction
A new ground for restriction has been added (Art.35), according to which the right to marry may be limited by law for the protection of the “morality”. As there is no definition of “morality,” this provision may give rise to various abuses.
A comparison of the social security, health, and other rights in the current Constitution and the proposed text reveals serious concerns. The current Constitution lists these rights under the Chapter of Fundamental Rights and Freedoms of Individual and Citizen, while the text of the draft amendments places theme under an ambiguous Chapter named Social, Economic, And Cultural Safeguards And The Main Objectives Of State Policy, turning the state’s obligations into “objectives of the state.”
Moreover, under the draft amendments, the Constitution will have a direct effect only in the case of basic rights whereas the principle enshrined in the current Constitution implies that a constitutional provision shall apply even if a special legal act enabling its application does not exist.
OTHER CONCEPTUAL ISSUES
Application of the Principles of International Law
Under the Draft Amendments, the state will now have to only “take into account” the international law
Current Constitution (Art.3) provides that the state shall guarantee the protection of fundamental human and citizen’s rights and freedoms in accordance with the principles and norms of international law. The Draft provides (Art.81): “When interpreting the provisions enshrined in the Constitution about fundamental rights and freedoms, the practice of bodies functioning on the basis of international treaties on human rights, to which the Republic of Armenia is a party, shall be taken into account.”
Beneficiaries of the Constitution
Both the current Constitution and the Draft Amendments are aimed at the “Armenian people,” (or Armenians) rather than the citizens of Armenia or “people of Armenia”
Both the current Constitution (preamble) and the Draft Amendments refer to “the Armenian people” as a subject of the Constitution—thereby asserting that “the Armenian people” are a participant in legal-constitutional relationships, which is not accurate. Clearly, “the Armenian people” is not the equal synonym of “citizens of the Republic of Armenia” or “inhabitants of the Republic of Armenia.” The term “the Armenian people” can include ethnic Armenians living in other countries. Moreover, persons of other ethnic origin, which live in Armenia, should also be participants of legal-constitutional relationships. This language is problematic and discriminatory and does not meet the principle of legal clarity.
The Apostolic Holy Church of Armenia
Both the current Constitution (Art.18) and the Draft Amendments (Art. 16) recognize the role of the Apostolic Church of Armenia as exclusive, rather than special or important
Although Article 16 provides that religious organizations shall be separate from the state, it proclaims the exclusive mission of the Apostolic Church in the spiritual life of the Armenian people and in the development of the national culture and preservation of the national identity. Agreeing with the comment of the Venice Commission, the working group replaced the word “exclusive” with the word “exceptional” in the English translation, but the word “exclusive” (բացառիկ) remains in the Armenian text.