In March 2014, the Commission of constitutional reforms under President of the Republic of Armenia presented the draft concept of constitutional reforms, and on 15 July, 2015 new draft constitution was issued.
The need for reform is based on the political, socio-economic or other circumstances that determine the total or partial discrepancy between the basic law of the country and the conditions of social life.
Based on the conceptual approaches to the constitutional reforms, the new draft constitution not only is not aimed at neutralizing the existing threats against Armenia, but also contains serious threats to the sovereignty of Armenia, national values and identity.
Let’s consider the most dangerous provisions in the draft constitution.
Article 5. The hierarchy of legal norms
1 The Constitution shall have the supreme juridical force. The laws shall conform to the Constitution. Legal acts shall conform to the Constitution and the laws.
2. Peremptory norm of general international law take precedence over the laws. If a ratified international treaty fixes other norms than those envisaged by laws, the rules of the international treaty shall be applied.
Note that while in Article 6 of the current Constitution precedence over our laws is only given to norms of treaties ratified by the Republic of Armenia, in paragraph 2 of Article 5 of the new Constitution peremptory norms of international treaties overrule laws of the Republic of Armenia, too.
There is a perception that the position of the norms of international law is of a general character. An analysis of the constitution of the countries of the world has shown that most of them do not contain this provision. The provisions of the predominance of international law and international treaties on the laws are contained in the constitutions of four post-Soviet countries (Russia, Belarus, Kyrgyzstan, Estonia) and four European countries (Austria, Germany, Greece, Serbia).
Studying the history of the origins of the provisions of international law, we get the following picture:
After Germany’s defeat in World War I article 4 of the Constitution of the Weimar Republic, states that: « The universally recognized rules of international law are accepted as integral and obligatory parts of the law of the German Reich».
After the defeat in World War I Article 9 of the Austrian Constitution states that: «The generally recognized rules of international law are regarded as integral parts of Federal law».
As a result of the defeat of Germany in World War II in the German constitution it was established as a transitional provision that «The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory».
That is, the historical position of international law appeared for the first time in the Austrian Constitution (https://www.constituteproject.org/constitution/Austria_2013?lang=en, Article 9) and German Constitution (Article 4 of the Constitution of the Weimar Republic in 1919 https://en.wikisource.org/wiki/Weimar_constitution, and Article 25 of the German Constitution in 1949, https://www.btg-bestellservice.de/pdf/80201000.pdf) as a result of the defeat in the first and second world wars. Armenia has not suffered defeat in any of the two world wars of the 20th century.
Let’s also clarify what is meant by peremptory norms of general international law (jus cogens).
Thus, Article 53 of the Convention on the Law of Treaties (link) states that A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
It’s not specified what norms are being referred to, by whom and when these norms were taken. Currently, there is an international legal document in which peremptory norms of international law (jus cogens) are listed. That is, it is not known to which peremptory norms of international law priority is given in Article 5 of the draft Constitution of the Republic of Armenia.
Moreover, in accordance with Articles 41 and 42 of the UN Convention adopted in 1966 and entered into force in 1976 of the «International Covenant on Civil and Political Rights» (https://en.wikisource.org/wiki/International_Covenant_on_Civil_and_Political_Rights) 10 countries participating in the agreement can make statements regarding other State party that the latter violates the provisions of this agreement. If the problem cannot be solved by concerned countries, a special committee will be established to make a decision.
It turns out that upon the request of only ten countries interference in the internal affairs of a sovereign State can be made by a Commission of five members which is unrelated to this State and which assumes the responsibility of resolving disputes.
To sum up, the provisions of paragraph 2 of Article 5 of the draft Constitution of the Republic of Armenia coincide with the provisions of the Constitution of the losers of the two world wars of the 20th century, which were developed for the post-war transition in these countries, and cannot be applied in the case of Armenia. Indicated in Article 5 of the draft Constitution peremptory norms of international law are not defined in the international legal practice and theory. International legal documents contain clauses (in particular in the legal acts of the UN of 1966), which establish a procedure for direct intervention in the internal affairs of the state.
Recently, the Constitutional Court of Russian Federation took the historic decision to not implement the decision of the European Court, because it is contrary to the principle of non-interference in the internal affairs of the state. Moreover, today in Russia intensive discussions are held, and serious arguments are provided about the danger of the priority of peremptory norms of international law and about the amendment of article 15 of the Constitution of the Russian Federation. Add that in Russia this article is qualified as giving the state the status of the colony at the highest level, about what a professional Commission of constitutional reforms could not be unaware. It is unclear on what basis the Commission of constitutional reforms at the RA President drafted Article 5 of the draft Constitution.
Thus, we believe that the second paragraph of Article 5 of the draft Constitution is contrary to Article 1 (Republic of Armenia is a sovereign, democratic state governed by rule of law) and represents a danger to the sovereignty of Armenia.
Article 58. Property and inheritance rights. Tax liabilities
6. For foreigners and stateless persons the right to purchase a land plot into ownership may be restricted by law.
The criteria by which the right to purchase land plot into ownership is limited for foreigners and stateless persons is inexplicit.
For example, if a citizen of the neighboring Azerbaijan or Turkey wants to buy а land plot, which law does restrict the right of a person to purchase land? In the Constitution there is not definition of such criteria.
There is a limit in paragraph 3 of Article 4 of the Land Code, which states: «According to the Constitution of the Republic of Armenia, the foreign residents, and non-citizens of the Republic of Armenia cannot obtain property rights on land. They can only be land-users».
A contradiction arises between paragraph 6 of Article 58 of the draft Constitution, which does not exclude the right to land ownership for foreigners and stateless persons, and paragraph 3 of Article 4 of the Land Code, which excludes this right. As the Constitution has supreme legal force, paragraph 3 of Article 4 of the Land Code should be changed in accordance with the Constitution. It turns out that the right to purchase land by foreigners and stateless persons is assigned by the paragraph 6 of.
In accordance with Article 5 of the Land Code, land of the Republic of Armenia is classified:
3) Industrial, for entrails-use and production
4) Energetic, transport, communicational, public structural
5) Specially protected areas
6) Special importance
9) Reserved land
Another reason for concern.
In 2003, Armenia became a member of the World Trade Organization. In 2010, during the Berlin Congress, the general director of the World Trade Organization Pascal Lamy said in its report on the principles of a supra-national regulation to provide access for transnational corporations to the natural resources of other countries. It was noted that, if the state imposes certain restrictive rules in the field of mining (such as those related to environmental protection), which reduces the profit of transnational corporations in the country, the authorities of the country where the account of the corporation is registered may require through its representative of World Trade Organization to reduce or abolish these general rules. Moreover, the TNC will have the right to challenge juridically the laws of the state in which they carry out their business. Such case took place in 2012, when the European Union and the United States filed a lawsuit to the WTO against China for the fact that China imposed restrictions on the export of rare metals because if raising export quotas.
So there is the question: how compatible the sovereignty of Armenia is with the lifting of the ban of the right of foreigners and stateless persons to purchase a land plot into ownership in the conditions of today’s realities?
Article 36. Rights of a child
1. Children shall have the right to express their views freely, which shall be taken into consideration on matters concerning them in accordance with their age and maturity.
2. Primary consideration should be given to the matters relating to the interests of the child.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with his parents, unless a competent authority decides that it is contrary to his interests.
4. Children without parental care are under the protection and care of the state.
In 1993, Armenia ratified the «Convention on the Rights of the Child», since 1996 has RA Law «On the rights of children» is in force in Armenia.
What multipurpose researches and analysis on children’s rights have been held since 1996 on a comprehensive and national level that have led to the conclusion that the documents ratified by Armenia and the RA Law «On the rights of children» are not enough to settle the protection of children’s rights, and it is necessary to devote a whole article on children’s rights in the new constitution?
Are children’s rights violated in Armenia, or are children being exposed to mass violence, torture, sexual or other exploitation? At the settlement of what issues related to children is the article on children’s rights in the new constitution aimed?
Paragraph 1 of Article 36 states:
«Children shall have the right to express their views freely, which shall be taken into consideration on matters concerning them in accordance with their age and maturity».
Which article or law of the Constitution of the Republic of Armenia determines which child’s opinion corresponds to his age and level of maturity? In the legislation of the Republic of Armenia there are not such definitions.
We have found quite disturbing answers in document №12 of Convention on the Rights of the Child called «general comments», adopted by the Commission on the Rights of the Child in 2009. This document is aimed to clarify article 12 of the Convention on the Rights of the Child should be how understood.
The right of the child to be heard
Article 12 of the Convention on the Rights of the Child provides:
“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
Then analyzes of the words and phrases from the article 12 of the Convention on the Rights of the Child is given:
(i) “Shall assure”
19. Article 12, paragraph 1, provides that States parties “shall assure” the right of the child to freely express her or his views. “Shall assure” is a legal term of special strength, which leaves no leeway for State parties’ discretion. Accordingly, States parties are under strict obligation to undertake appropriate measures to fully implement this right for all children. This obligation contains two elements in order to ensure that mechanisms are in place to solicit the views of the child in all matters affecting her or him and to give due weight to those views.
According to this paragraph, the states should be strictly guided only by the provisions of this document and have no right to take any steps at their own discretion.
(ii) “Capable of forming his or her own views” 20. States parties shall assure the right to be heard to every child “capable of forming his or her own views”. This phrase should not be seen as a limitation, but rather as an obligation for States parties to assess the capacity of the child to form an autonomous opinion to the greatest extent possible. This means that States parties cannot begin with the assumption that a child is incapable of expressing her or his own views. On the contrary, States parties should presume that a child has the capacity to form her or his own views and recognize that she or he has the right to express them; it is not up to the child to first prove her or his capacity.
21. The Committee emphasizes that article 12 imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him. In this respect, the Committee underlines the following:
− First, in its recommendations following the day of general discussion on implementing child rights in early childhood in 2004, the Committee underlined that the concept of the child as rights holder is “… anchored in the child’s daily life from the earliest stage”.5 Research shows that the child is able to form views from the youngest age, even when she or he may be unable to express them verbally.6 Consequently, full implementation of article 12 requires recognition of, and respect for, non-verbal forms of communication including play, body language, facial expressions, and drawing and painting, through which very young children demonstrate understanding, choices and preferences;
− Second, it is not necessary that the child has comprehensive knowledge of all aspects of the matter affecting her or him, but that she or he has sufficient understanding to be capable of appropriately forming her or his own views on the matter;
− Third, States parties are also under the obligation to ensure the implementation of this right for children experiencing difficulties in making their views heard. For instance, children with disabilities should be equipped with, and enabled to use, any mode of communication necessary to facilitate the expression of their views. Efforts must also be made to recognize the right to expression of views for minority, indigenous and migrant children and other children who do not speak the majority language;
− Lastly, States parties must be aware of the potential negative consequences of an inconsiderate practice of this right, particularly in cases involving very young children, or in instances where the child has been a victim of a criminal offence, sexual abuse, violence, or other forms of mistreatment. States parties must undertake all necessary measures to ensure that the right to be heard is exercised ensuring full protection of the child.
The Commission emphasizes that there are no age restrictions for the expression of opinion. Moreover, a child does not necessarily have a deep knowledge of the issues pertaining to it, it is enough to know as much as enough to express their views.
For example, if the child at puberty expresses a desire to see or read erotic material or advocating homosexuality (for example, by visiting the official website of the NGO «Public information and need of knowledge», advocating lifestyle of lesbian, gay, bisexual and transgender http://www.pinkarmenia.org/, which is available in open mode) without deep knowledge, about the negative consequences of his actions, in accordance with the above-mentioned document, the government should encourage such step of the child and contribute to the full expression of his opinion, without taking into account his age.
(iii) “The right to express those views freely”
22. The child has the right “to express those views freely”. “Freely” means that the child can express her or his views without pressure and can choose whether or not she or he wants to exercise her or his right to be heard. “Freely” also means that the child must not be manipulated or subjected to undue influence or pressure. “Freely” is further intrinsically related to the child’s “own” perspective: the child has the right to express her or his own views and not the views of others.
23. States parties must ensure conditions for expressing views that account for the child’s individual and social situation and an environment in which the child feels respected and secure when freely expressing her or his opinions.
24. The Committee emphasizes that a child should not be interviewed more often than necessary, in particular when harmful events are explored. The “hearing” of a child is a difficult process that can have a traumatic impact on the child.
25. The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian. The child must also be informed about the conditions under which she or he will be asked to express her or his views. This right to information is essential, because it is the precondition of the child’s clarified decisions.
It is emphasizes that the right to freely express views means that the child should express their views on their own, without outside interference. For example, if the parents forbid their child to watch any perverting materials or to a strip club, or take other restrictive measures to protect their child, document it violates the child’s right to express their views freely, according to the authors of the.
(iv) “In all matters affecting the child”
26. States parties must assure that the child is able to express her or his views “in all matters affecting” her or him. This represents a second qualification of this right: the child must be heard if the matter under discussion affects the child. This basic condition has to be respected and understood broadly.
27. The Open-ended Working Group established by the Commission on Human Rights, which drafted the text of the Convention, rejected a proposal to define these matters by a list limiting the consideration of a child’s or children’s views. Instead, it was decided that the right of the child to be heard should refer to “all matters affecting the child”. The Committee is concerned that children are often denied the right to be heard, even though it is obvious that the matter under consideration is affecting them and they are capable of expressing their own views with regard to this matter. While the Committee supports a broad definition of “matters”, which also covers issues not explicitly mentioned in the Convention, it recognizes the clause “affecting the child”, which was added in order to make clear that no general political mandate was intended. The practice, however, including the World Summit for Children, demonstrates that a wide interpretation of matters affecting the child and children helps to include children in the social processes of their community and society. Thus, States parties should carefully listen to children’s views wherever their perspective can enhance the quality of solutions.
This paragraph states that the Commission rejected a clear definition of the list of issues that relate to the child, and declares that this concept should be understood in a broad sense. That is to say, broad sense may mean all the above negative phenomena, and many other similar cases.
(b) Paragraph 2 of article 12
(i) The right “to be heard in any judicial and administrative proceedings affecting the child”
32. Article 12, paragraph 2, specifies that opportunities to be heard have to be provided in particular “in any judicial and administrative proceedings affecting the child”. The Committee emphasizes that this provision applies to all relevant judicial proceedings affecting the child, without limitation, including, for example, separation of parents, custody, care and adoption, children in conflict with the law, child victims of physical or psychological violence, sexual abuse or other crimes, health care, social security, unaccompanied children, asylum-seeking and refugee children, and victims of armed conflict and other emergencies. Typical administrative proceedings include, for example, decisions about children’s education, health, environment, living conditions, or protection. Both kinds of proceedings may involve alternative dispute mechanisms such as mediation and arbitration.
33. The right to be heard applies both to proceedings which are initiated by the child, such as complaints against ill-treatment and appeals against school exclusion, as well as to those initiated by others which affect the child, such as parental separation or adoption. States parties are encouraged to introduce legislative measures requiring decision makers in judicial or administrative proceedings to explain the extent of the consideration given to the views of the child and the consequences for the child.
34. A child cannot be heard effectively where the environment is intimidating, hostile, insensitive or inappropriate for her or his age. Proceedings must be both accessible and child-appropriate. Particular attention needs to be paid to the provision and delivery of child-friendly information, adequate support for self-advocacy, appropriately trained staff, design of court rooms, clothing of judges and lawyers, sight screens, and separate waiting rooms.
(ii) “Either directly, or through a representative or an appropriate body”
35. After the child has decided to be heard, he or she will have to decide how to be heard: “either directly, or through a representative or appropriate body.” The Committee recommends that, wherever possible, the child must be given the opportunity to be directly heard in any proceedings.
36. The representative can be the parent(s), a lawyer, or another person (inter alia, a social worker). However, it must be stressed that in many cases (civil, penal or administrative), there are risks of a conflict of interest between the child and their most obvious representative (parent(s)). If the hearing of the child is undertaken through a representative, it is of utmost importance that the child’s views are transmitted correctly to the decision maker by the representative. The method chosen should be determined.
According to this paragraph, the child is entitled to be heard in the excited in the legal proceedings initiated by him, on the basis of his complaints against ill-treatment towards him. Moreover, during the proceedings of the representatives of the child may be parents or lawyers, for example, a social worker. However, the Commission underlines the risk of a conflict of interest between the child and parents during the proceedings. What kind of conflict of interest there can be? It turns out that you need to protect the child from his parents?
(b) The hearing
42. The context in which a child exercises her or his right to be heard has to be enabling and encouraging, so that the child can be sure that the adult who is responsible for the hearing is willing to listen and seriously consider what the child has decided to communicate. The person who will hear the views of the child can be an adult involved in the matters affecting the child (e.g. a teacher, social worker or caregiver), a decision maker in an institution (e.g. a director, administrator or judge), or a specialist (e.g. a psychologist or physician).
43. Experience indicates that the situation should have the format of a talk rather than a one-sided examination. Preferably, a child should not be heard in open court, but under conditions of confidentiality.
In fact, pursuant to the complaints of the child an investigation can be opened, during which the opinion of child will listened by the strangers and, preferably, in secrecy. And it is unknown who these people are and what their world view and value system are.
Separation from parents and alternative care
53. Whenever a decision is made to remove a child from her or his family because the child is a victim of abuse or neglect within his or her home, the view of the child must be taken into account in order to determine the best interests of the child. The intervention may be initiated by a complaint from a child, another family member or a member of the community alleging abuse or neglect in the family.
This paragraph states that the decision to remove a child from a family because of neglect (what is meant by «neglect» is not specified. For example, is it neglect when parents don’t give a lot of chocolate to the child, or if in the refrigerator there is not enough citrus?) can be accepted on the basis of complaints (anonymous) of the child, or of his family member (for example, joke of the teenage family member) or a resident of the district (someone having a bad relationship with the family).
It is worth noting that in April 2015 the Parliamentary Assembly of the Council of Europe adopted a resolution which expressed concern that in some European countries children are quickly removed from the family, which often has tragic nature when children are adopted without the consent of parents.
According to PACE, in the majority of member countries of the Council of Europe’s social services take an independent decision to take the child from the family without a court order, taking as a basis for finding a child in the «risk group».
Thus, in order to clarify the provisions of Article 36 of the draft Constitution, we refer to Document number 12, entitled «general comments» of the adopted in 2009 by the Commission on the Rights of the Child, the provisions of which are mildly disturbing, do not contain the exact wording, and allow arbitrary interpretations.
When studying the constitution of the European countries and the former Soviet republics it is fond that the whole articles devoted to the rights of the child are only in the constitutions of the three countries (Poland, Slovenia and Serbia).
We affirm that paragraphs 1-3 of Article 36 of the draft Constitution of the Republic of Armenia contain serious threats aimed at destroying the traditional family based on Christian values.
Information-Analytical Center «Light»