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4

Constitutional Changes in Armenia from the Perspective of Human

Rights
The purpose of this analysis is to study the articles of the amendment to the
constitution of the Republic of Armenia specifically related to human rights
protection and specify those articles which need improvement. This analysis
has regrettably shown that instead of pushing the constitution towards
progress, specifically in the area of human rights, regress has been recorded,
which should not have been overlooked by the Venice Committee, nor by the
authorities of the Republic of Armenia. Therefore, this analysis calls for
revisiting the draft specifically in the field of human rights and make
corresponding changes for avoiding regress in this area.
The first observation concerns the usage of the term morality/ethics in the
draft amendment. This term is used in many articles, highlighting that this or
that right can be restricted by law for moral/ethical purposes. The usage of this
term in the draft exceeds the usage of this term in the current constitution.
Taking into consideration that this term has a very broad philosophical and
ideological interpretation, and the usage of this term without clarification as to
which action is considered as moral/ethical and which not, restriction of rights
based on this notion will lead to confusion and biased decisions (examples of
such usages: article 25 point 2, article 31 point 2, article 32 point 2, article 33
point 2, article 34 point 4, article 35 point 3 etc).
Another observation concerns the right to property. Unlike the current
constitution, which provides the right to possess own property without harming
the environment, as well as without violating the rights and legitimate interests
of other persons, the public and the state (article 31), the amendment provides
only the right of each person to use their property at their own discretion
(article 60).
Another observation concerns the right to marriage. If the current constitution
provides the right of the man and the woman of marriageable age to marry and
form a family (article 35), the draft provides the right for the man and the
woman of marriageable age to marry each other and form a family (article 35).
Although current constitution does not foresee legal registration of same-sex
marriages, yet the formulation of this article in the draft with the addition of the
5

phrase each other is a step back in the protection of the rights of the LGBT
community.
Another observation concerns the risk of discrimination. Such a risk occurs if
the draft is adopted in its current form, since the 1 st article of the draft
proclaims that the Armenian people recognize this Constitution . However,
since the Republic of Armenia is composed of citizens representing different
ethnic groups, the formulation should thus change into the people of the
Republic of Armenia.
Another observation concerns the right to compensation in case of wrongful
conviction (article 62 point 2). According to the draft, there can be
compensation for wrongful conviction, if the case was revisited as a result of
new circumstances which prove the wrongfulness of the conviction. However,
according to the professional opinion of the lawyers, this formulation is wrong,
since the wrongful conviction can be proved not only based on new
circumstances, but also based on circumstances which were present in the
case, however, were dismissed by the court (for various reasons), which
resulted in biased and wrongful conviction.
Another observation concerns the presumption of innocence. Unlike the current
constitution, two important clauses are omitted from the draft. These are, the
defendant shall not be obliged to prove his or her innocence and any reasonable doubt shall be
interpreted in favour of the defendant (article 66 in the draft, article 21 in the current constitution).
Yet another observation concerns the inadmissibility of evidence. The draft
suggests declaring the evidence as inadmissible when it is obtained illegally (as
in current constitution article 22) and through breach of fundamental rights
(article 63 point 3). However, according to specialists, this is a wrong
formulation, since evidence can be obtained illegally, but not necessarily
through the breach of fundamental rights, like when the examination of the
crime scene is carried out in presence of one instead of two witnesses as
required by law. This is an illegal way of obtaining evidence, however, it is not in
breach with fundamental rights.
A sign of regress rather than progress is the constitutional recognition of this or
that right by the state, however, absence of states obligation to protect it. For
example, if in the present constitution persons dignity, as the core of his/her
rights and freedoms, is respected and protected by the state (article 14), the
draft only recognizes dignity as the core of the persons rights and freedoms
(article 3 point 1).
In case of some other rights, such as right to health (draft article 85), safe
conditions of work (draft article 82), there is again regress. While they are
6

declared as rights in the current constitution, in the draft it is mentioned that

the law will define these rights. Thus in case of violation of these rights, it will
no longer be possible to apply to the constitutional court.
Moreover, article 33.2 of the current constitution is completely absent from the
draft, which means that the draft records regress when it comes to the
protection of the environment and the right to live in a healthy environment.
The article 33.2 of the current constitution, which declares that each person has
the right to live in an environment favourable to his/her health and well-being,
is absent from the draft. This means that the state does not recognize this right
through the constitution as well as there is no mentioning that this right will be
regulated by the law.
In addition, article 10 of the present constitution, which declares that the state
protects the environment and ensures its recovery, as well as the reasonable
usage of natural resources, is now absent from the draft. There is a new
formulation which suggests that the state stands back from its positive
obligations. The new vague formulation declares that the state encourages the
protection and recovery of the environment, as well as the reasonable usage of
natural resources, guided by the principle of sustainable development and its
responsibility towards the future generations (draft article 12 point 1).
In the previous draft of the amendment to the constitution there was an
attempt to broaden the mandate of the Human Rights Defender (Ombudsman),
giving him the authority to regulate not only the state-citizen relations (article
51), but in some cases also have the authority to regulate the private sector
(previous draft article 190, point 2). The previous draft, however, limited this
authority to regulating specifically the private organizations that provide public
services to the population.
This broadening of the mandate was justified with the determination to improve
the Ombudsmans rights and obligations provided by the constitution and make
them more consistent with the international standards.
However, these provisions are absent from the current version of the draft
(article 52 and 191). It is only mentioned that the Ombudsmans additional
mandates will be provided through the corresponding law. However, these may
or may not be provided by the law.
It is, however, necessary to mention that today, more than ever, it is important
to have the additional mandate of the Ombudsman included in the Constitution
that will authorize him/her to regulate the relations between the citizens and
the private sector. The first reason for doing so is the increasing occasions of
citizens dealing with the private sector not only in terms of public services, but
7

also in terms of labour, environment, construction, etc. The second reason is

the existing examples of human rights institutions, such as Danish Institute for
Human Rights, providing analyses and consultations to the private sector with
the purpose to eliminate human rights violations committed by the latter.
Therefore, broadening the ombudsmans mandate can indeed be considered as
an improvement and in line with the international standards, if it is clearly
stated in the constitution that this mandate is aimed at regulating the relations
of the citizens with the private sector, which has become the inseparable part
of peoples daily life.