强迫失踪问题委员会审议亚美尼亚的报告（部分翻译）

2015年2月4日

强迫失踪问题委员会今天结束了对亚美尼亚提交的有关该国如何落实《保护所有人免遭强迫失踪国际公约》规定的初次报告的审议。

亚美尼亚警务处副处长霍夫汉内斯·朴贺斯恩（Hovhannes Poghosyan）在介绍报告时表示，该国自独立第一天起便开始对国内政治和法律结构进行集中改革。亚美尼亚认为批准公约是将保护人权和基本自由符合国际标准的一个重要步骤。亚美尼亚尚无任何登记在册的强迫失踪案件，刑法中也没有关于强迫失踪的单独条款，但亚美尼亚已经为刑法编制了一条有关强迫失踪问题的新条款。

专家们在对话中询问了修改刑法的过程，对强迫失踪罪行的惩罚的严重性，外国公民和无国籍者待遇，引渡和不驱回原则以及军事机构的诉讼时效和起诉等。专家们还询问了受害者的定义，公约在法庭中的直接实用性，监察员的作用和父母失踪的儿童待遇等问题。

担任亚美尼亚报告共同报告员的委员会专家马马杜·巴迪奥·卡马拉（Mamadou Badio Camara）在总结发言中强调称，强迫失踪是一种极其严重的犯罪。他指出，讨论中还重点关注预防秘密拘留和强迫失踪的方法以及登记的重要性。保护个人资料、不驱回原则和受害者定义也是十分重要的。亚美尼亚报告共同报告员苏埃拉·雅尼纳（Suela Janina）表示，委员会对该国提出的有关强迫失踪罪的定义感到鼓舞，并强调对法案的落实与立法同等重要。

朴贺斯恩先生在总结发言中对委员会的出色工作及其提供的建设性意见表示感谢。亚美尼亚将仔细研究结论性意见并以书面形式回答所有尚未解决的问题。

亚美尼亚代表团包括来自亚美尼亚警察总署、司法部、外交部和亚美尼亚常驻联合国日内瓦办事处的代表。

委员会将于今天下午3点再次召开会议，届时将开始审议塞尔维亚的初次报告（CED/C/SRB/1）。

Presentation of the Report

HOVHANNES POGHOSYAN, Deputy Director of the Police of Armenia, said since independence Armenia had taken the path of creating a democratic society based on the rule of law. The intensive reform of the political and legal structure of the country started with the first days of independence. Armenia had been actively involved in activities launched within the United Nations framework and had co-operated with many structures and subdivisions of the Organization. Armenia was a signatory to numerous international treaties, including the fundamental instruments in the field of human rights.

The reporting process pursuant of Article 29 of the Convention offered a valuable opportunity for Armenia to review its legislation and practice aimed at improvements in line with international standards. The current report had been drafted by the Police of Armenia, while relevant stakeholders, including various governmental institutions and the Office of the Human Rights Defender, had had opportunity to contribute their comments. The draft report had also been made public to allow comments from members of civil society. Armenia considered the ratification of the Convention an essential step towards bringing the protection of human rights and fundamental freedoms into compliance with international standards.

Thus far there had been no cases of enforced disappearance registered in Armenia and there was no separate article on enforced disappearances in the Criminal Code. Nonetheless, the provisions of the Constitution, Criminal Code and the Criminal Procedure Code contained a series of elements on the definition of enforced disappearance.

The delegation appreciated the additional questions raised by the Committee which had brought to its attention issues to be considered further. Hence, a new draft article on enforced disappearances to the Criminal Code had been prepared and was fully in line with the definition provided by the Convention. It was now available on the official website of the Police. The draft article would be included in the Criminal Code once it had passed the envisaged procedures pursuant to the national legislation. Another draft article defined sanctions for the act of enforced disappearance when it had a widespread or systematic nature. Both amendments were foreseen to be included in Section 33 of the Criminal Code as crimes against the humanity and peace.

Questions from Committee Experts

SUELA JANINA, Committee Member serving as Co-Rapporteur for the report of Armenia, thanked the delegation for the timely submission of the initial report. She asked how the right of individual citizens to appeal to the Committee would be applied, given that the State party did not recognize the competencies of the Committee under Article 31 of the Convention.

Could the delegation inform the Committee whether there had been broad-based consultations with civil society, as recommended by the Committee?

Could the provisions of the Convention be directly invoked by judges in Armenia and how was that done in practice. An Expert wanted to know whether the domestic legal framework provided for derogation from any human rights under special circumstances, and asked for details.

In the opinion of the delegation, were elements contained in different crimes listed in the Criminal Code sufficient to cover the crime of enforced disappearances? What was the current state of play regarding the mentioned amendments to the Criminal Code?

A question was asked on how the State party dealt with crimes of enforced disappearances which were committed by individuals and groups without endorsement of the State.

While Armenia was not a party to the Rome Statute, was there any update on the possibility to ratify the Statute and what were the challenges along the way?

An Expert wondered if the existing legislative provisions on invoking the superior to justify the crime would be amended.

The statute of limitations for crimes considered grave and very grave lasted between 10 and 15 years. Could the delegation elaborate on the application of the statute of limitations by courts?

MAMADOU BADIO CAMARA, Committee Member serving as Co-Rapporteur for the report of Armenia, asked whether foreign nationals and stateless persons were subject to the jurisprudence of Armenia if they committed grave crimes or crimes against international conventions ratified by Armenia.

If crimes were committed abroad and the alleged perpetrator was in Armenia, what might happen in the absence of a legal aid treaty with the country where the crime had been committed. On the matter of extraditions, could Armenia refuse to extradite someone based on any form of immunity? Was enforced disappearance considered a political crime?

What provisions and mechanisms were provided to ensure that if a crime of enforced disappearance was committed, the suspect would not have the possibility to influence the investigation, especially if he was police, a military officer or a gendarme?

What role did the Office of the Public Prosecutor and the judicial authorities play in cases of enforced disappearances? Could military commanders investigate cases of enforced disappearances, and if so, only those committed by military personnel, or also by civilians?

Would so-called “legitimate acts” be investigated if they led to the crime of enforced disappearances? Had the Constitutional Court established that there were no incompatibilities with the Convention? Could the delegation explain what it meant by “persons outside of the law”?

The Convention covered a whole range of issues, including preventive measures, which could be applied in the country on a regular basis. Had any provisions of the Convention been directly applied or invoked by courts? How many countries had Armenia concluded extradition treaties with, another Expert inquired.

Responses from the Delegation

Responding to questions on international covenants and the Constitution, a delegate said that Armenia was considering subscribing to Articles 31 and 32 of the Convention. A full procedure would need to be followed again, including asking for the Parliament’s approval. Armenia had accepted optional protocols allowing for individual initiatives of the following treaties: International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination against Women.

It was explained that every person, court and governmental institution could directly invoke provisions of the ratified conventions, even if they were not spelled out in the national legislation. Courts could directly cite provisions of the Convention.

Ratification of the Rome Statute, which Armenia had signed in 1998, had been stopped by the Constitutional Court in 2005, as some provisions of the Statute were found to be in contradiction with the Constitution of Armenia. International conventions could be ratified only if they were not contradicting the Constitution. Armenia was currently in the process of amending the Constitution.

The delegation specified that Armenia had 12 bilateral agreements on mutual legal assistance, and nine bilateral treaties and three applicable treaties on extradition.

If a crime was committed in the territory of another State, the principle of reciprocity was applied. The competent bodies for communication on mutual legal assistance were the Office of the Prosecutor and the Ministry of Justice. If there was no international treaty, an agreement had to be reached through diplomatic channels between Armenia and the concerned country. Extradition of diplomats was not possible due to the provisions of the 1961 Vienna Convention.

A delegate said no feedback from civil society regarding the preparation of the report was received, so the State party had proceeded with the consultation process within Government structures and with the Ombudsman’s Office.

The process of introducing draft laws in Armenia involved discussions with State bodies first. Based on their recommendations, changes were made in the draft law, after which it was shared on the webpage for consultations with civil society. Further, an expert opinion was sought, after which it was sent to the President’s Office for Government approval, before being sent to Parliament for the final adoption. At all stages, input by civil society was welcome, and draft laws could be revised in line with their suggestions. Currently the amended draft of the Criminal Code was available on the webpage.

Enforced disappearance was considered a continuous crime, as it could not be terminated unless the crime had been ended one way or the other. The Criminal Code defined serious crimes as those for which the maximum punishment defined was no more than 10 years of imprisonment. Grave crimes were those leading to between 10 years imprisonment to life in prison. In the draft law, enforced disappearance without aggravated circumstances was defined as a serious crime, and with aggravated circumstances it was considered a grave crime. It was not a political crime.

The delegation explained that article 16 of the Constitution guaranteed liberty of the person, who could be deprived of it only in accordance with the law. Making a person disappear was clearly illegal and was thus already prohibited. In the state of war or emergency, there could be no derogations from any rights.

Responding to the question on military investigations, the delegation said that preliminary investigations could be conducted by military personnel for the crimes committed by military units. Further investigation was conducted by State investigative committees or security officials.

If there was a suspected enforced disappearance, a compilation of articles mentioned in the report would be used. Investigation would commence no matter who was suspected of being the perpetrator of the crime. When there was a criminal process against the perpetrator involved, and if that person was a member of the State authorities or a police officer, his immunity and status would be revoked.

The Criminal Code stipulated that a person, regardless of their nationality or lack thereof, would bear responsibility in line with the laws of Armenia if a crime of enforced disappearance was committed on its territory. If a crime was committed on vessels carrying the Armenian flag, the perpetrator would also be borne before the courts in Armenia.

Questions from Committee Experts

MAMADOU BADIO CAMARA, Committee Member Serving as Rapporteur for the report of Armenia, said that the replies were very informative and the Committee had learned a lot about the legal framework of Armenia. He believed that the crime of enforced disappearance should fall under the category of ‘grave offence’ and sanctions should be no less than 10 years imprisonment. The Convention spoke about appropriate penalties which were necessary to deal with the seriousness of the offence.

The Expert noted that the duration of the statute of limitations was also problematic. For the same crime of enforced disappearance, depending on circumstances, there were two different terms of limitations – 10 years for a “serious crime” and 15 years when it was a “grave crime.”

SUELA JANINA, Committee Member Serving as Rapporteur for the report of Armenia, asked about modalities courts might use to establish statutes of limitations. The Expert noted that there was readiness by the State party to proceed with accepting competencies of the Committee under articles 31 and 32. The Committee was looking forward to the completion of the ongoing procedures.

Another Expert asked whether a registry of possible enforced disappearances existed, or if there had simply been no reports of cases of enforced disappearances in the country. Had the Ombudsman been asked and unofficial sources consulted about possible existence of any cases?

Returning to the continuous nature of the crime, an Expert noted that before bringing the perpetrator to justice, it was more critical that a missing person be found although punishing the perpetrator was, naturally, also very important.

An Expert asked about the appointment and status of the Ombudsman. How large was the investigation unit, another Expert inquired. Could more details be provided on conditions of their work?

How did Armenia define a ‘military territory’? How long could the preliminary investigation, carried out by the military, last? Could they take witness statements, order detention of suspects, or carry out other investigative actions? Did the military investigators necessarily need to precede national security services?

While abduction could be an independent crime, it was paramount to have specific rules on how preliminary investigations were to be conducted. Abduction could sometimes be even worse than an enforced disappearance.

Response from the Delegation

The delegation said that the draft law on the amendments on the Criminal Code was at the stage of preliminary discussions and it was the right time to make changes and amendments at the moment. The articles related to enforced disappearances currently prescribed less strict punishments than suggested by the Committee. The delegation fully agreed with the Committee’s position and thus envisaged changes which would include the seriousness of the crime in the law. If a crime of enforced disappearance has occurred, the perpetrator would be punished by compilation of the existing articles present in the Criminal Code.

Regarding justification of the crime by legal order, the delegation explained that when conducting a legal order, when a person committed an offence, the person who gave the order would be punished, which was considered reasonable by the delegation.

Studies had been conducted by the Police on various crimes which could have led to or equaled an enforced disappearance. All those crimes were registered in the police information centre, so such a crime could be identified even though a clear article might not yet exist in the Criminal Code. Mass media reaction to such an issue would also bring the spotlight on it. Both police officers and special investigators were regularly trained by both Armenian citizens and foreigners, so their skills remained up-to-date.

A delegate explained that the special investigative body was independent, whose head was appointed by the President of Armenia, with the advice of the Prime Minister, for a term of six years. More experienced investigators were members of the body, and the activities of the body were regulated by the Law on Investigations-

It was not necessary for a crime committed on the territory of a military unit for State investigators be involved, said a delegate. With regard to continuous crimes, a delegate said that even if the perpetrator was dead, the investigation would naturally continue to identify the whereabouts of the victim.

The delegation reiterated that international treaties had primacy in the Armenian legal system. Domestic legal provisions were still needed in order to establish clear sanctions.

Regarding civil society involvement in preparing draft law on the amendments on the Criminal Code, a delegate said the draft was available at the website of the Police of Armenia, and in case of comments, there were consultations and meetings organized. Receiving feedback from the civil society had proven to be very effective and useful for the Police.

The status of the Ombudsman was clarified. He or she was elected by the Parliament, was independent and closely cooperated with the Government, local authorities and the civil society. While no direct comments had been received by the civil society on the draft report, the Ombudsman, who was in close contact with the civil society, had contributed to the preparation of the report.

Questions by Experts

An Expert asked whether there were any exceptions to the principle of non-refoulement in the Armenian legislation. While illegal entry into the Armenian territory was punishable, were there any plans to amend that article in order to bring it in line with the principle of non-refoulement if the individual would be in danger if returned to his country.

In order to prevent secret detention and enforced disappearances, keeping of registers in all detention facilities was critical, the Expert stressed. Who had access to those registers, beyond the competent authorities? Which authorities were monitoring and checking that those registers were properly compiled?

What were the modalities on forced placement in treatment centres, the delegation was asked, as well as if a detainee was a member of the armed forces, whether his family would be informed about his detention?

How were the regional offices of the Ombudsman supported? Could the Ombudsman receive complaints on the alleged acts of enforced disappearances, and had such cases ever been submitted to that office? What was the current status of the envisaged Military Ombudsman?

Could the delegation elaborate on the existence of mechanisms to ensure the right to know the truth about disappeared persons, the Expert asked. Experts also asked about search methods for missing persons, how suspects for enforced disappearances could be released and the conditions on exercising personal jurisdiction if an Armenian citizen committed a crime abroad.

Regarding children, an Expert asked whether existing procedures were in the best interest of the child, whether children had the opportunity to express their views in that regard, and whether a child whose parents were missing or in custody would be given into the care of his relatives.

Did the Criminal Code include family members of the victim in cases when the victim was found alive, asked another Expert. What were the procedures in their right to know, and what was the current concept of ‘the victim’? What happened if a person was disappeared and it was not known if he was dead or alive, but the family presumed they were still alive?

Response from the Delegation

The delegation reiterated that the Ombudsman was elected by the Parliament for six years. That function was independent in the exercise of its power; the staff of the Ombudsman Office were funded by the State budget. There were three local offices of the Ombudsman. The Office of the Ombudsman had been actively engaged in the preparation of the initial report, and had not reported on any cases of enforced disappearances that it was aware of.

There was an initiative in place to create an Office of the Military Ombudsman, and the draft was to be presented by the end of 2014. The delegation would check and revert.

Generally, extradition requests would need to take into consideration relevant legal provisions of the country requiring extradition; the crime of enforced disappearance would be treated along its constitutive elements, given that it still did not exist as such in Armenia’s legislation.

On secret detentions, a delegate explained that there was no law specifically relating to it, such an article was envisaged. Persons were only to be deprived of liberty in accordance with law and any deviation from that was to be considered unlawful detention.

Responding to questions on registration information in detention facilities, it was said that all the people with the rights to conduct monitoring had a chance to review that information from time to time. Those included President, Prime Minister, Members of the Parliament, Prosecutor-General, Ombudsman and others. The Ombudsman could enter any detention facilities and check on the conditions and the accurateness of the registers.

Families of detained military personnel would be the first to be informed about their detention, followed by military commanders, clarified a delegate. If a victim was absent or unable to realize his rights, with the help of the prosecutor or the court, successor of the victim was decided on the basis of the blood relations to the victim. If the family relation was at the same stage, other circumstances would be taken into consideration.

Registration in detention facilities was constantly monitored by police organs and prosecutors, as well as by the civil society and international organizations and there were no problems with registration currently. Any personnel who did not follow registration rules would be sanctioned. All personnel involved in law enforcement, military and judiciary underwent training programmes and workshops, confirmed another delegate.

If a child was unlawfully separated from his parents, the Criminal Code stipulated punishment and liability. False adoptions were also criminalized, and there were several bases for revocation of an adoption. If a child was 10 years old or more, his opinion was taken into consideration. Closest relatives were considered first if a child’s parents were disappeared.

Regarding deportations of people from the territory of Armenia, the principle of non-refoulement was applied when it came to both extraditions and deportations whenever there was a risk of cruel or inhuman treatment in the home country, confirmed a delegate.

Questions by Experts

In follow-up questions Experts asked whether the principle of the right to information was restricted somehow in Armenian legislation. The delegation was asked to clarify the difference between “imprisonment” and “placement in custody”, and to state whether Armenia accepted diplomatic assurances when considering extradition, especially when death penalty was a possible punishment. An Expert asked about prison overcrowding in Armenia and its connection with the accurateness of detention registers.

Several Experts asked for further clarification on the definition of victim. The disappeared person’s family and relatives could also be considered as victims due to their suffering. Could the successor also be considered a victim? An Expert stressed that a disappeared person should not be considered dead until established so without doubt. On the contrary, it was to be presumed that the person was alive. A successor should not be designated while the person was possibly still alive.

Response from the Delegation

On extradition, there were no specific mechanisms to evaluate risks that a person might be subject to an enforced disappearance, clarified a delegate. Written guarantees by the receiving countries were needed to ensure that the human rights of the extradited persons would be respected. Extradition was not conducted if a possible punishment was death penalty.

On the right of relatives to the information, the family of an imprisoned person would be informed no later than 12 hours after the detention; the same applied to foreign citizens and stateless persons, said a delegate.

Regarding the registers of the detained, a delegate said that those were not electronic yet, but they were kept up to the date in paper copies.

In case of enforced disappearances, damage could be physical or psychological. If a victim was absent, and a successor was his relative, in accordance with the law. If the victim was found, he would reclaim restitution rights, if he was able to exercise them. Whenever the victim applied, he would be given compensation.

Concluding Remarks

MAMADOU BADIO CAMARA, Committee Member and Co-Rapporteur for Armenia, said that the constructive dialogue was an opportunity to consider the legal provisions applicable in the State party, particularly the Constitution and the Criminal Code. The Experts stressed that enforced disappearance was a crime of the utmost gravity. The discussion focused on measures to prevent secret detention and enforced disappearances, which was why the importance of registers was brought up. Protection of personal data, principle of non-refoulement and the definition of victim were very important. The Convention had a very broad notion of who could be a victim, broader than national legislation in many countries, as it included relatives of the disappeared person. The importance of training on the main provisions of the Convention was emphasized. The Committee was greatly interested in Armenia’s draft amendments of the Criminal Code to provide for a crime of enforced disappearance, which was commendable.

SUELA JANINA, Committee Member and Co-Rapporteur for Armenia, stated that the Committee was encouraged by the proposed definition of the crime of enforced disappearance, and supported the State party in pursuing broad discussions with the Ombudsman and the civil society. It was important that the definition was in line with Article 2 of the Convention. While legislative process was important, actual implementation was equally important. The Committee hoped its recommendations would help Armenia meet its international obligations.

HOVHANNES POGHOSYA, Deputy Director of the Police of Armenia, thanked the Committee for its excellent work and providing constructive remarks. Armenia would carefully study concluding observations and provide answers in writing to all outstanding questions.

EMMANUEL DECAUX, Committee Chairperson, recalled that Armenia had been among the first States to ratify the Convention, and thanked Armenia for submitting its initial report within the two-year time period provided. The Committee hoped its comments would help the State party in the process of finalizing changes to the Criminal Code.
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