Mr. D. Harutyunyan
Minister of Justice of the Republic of Armenia

Dear Mr. Harutyunyan,

Given that the draft Laws of the Republic of Armenia “On making an amendment to the Law of the Republic of Armenia ‘On freedom of conscience and religious organizations’”, “On making an amendment and a supplement to the Law of the Republic of Armenia ‘On non-governmental organizations’”, “On making an amendment and supplements to the Law of the Republic of Armenia ‘On the relations between the Republic of Armenia and the Holy Armenian Apostolic Church”, “On making an amendment to the Law of the Republic of Armenia ‘On local self-government’”, “On making an amendment to the Law of the Republic of Armenia ‘On local self-government in the city of Yerevan’”, “On making amendments and a supplement to the Code of Administrative Offences of the Republic of Armenia”, “On making amendments to the Criminal Code of the Republic of Armenia” were posted, on 1 June 2017, for discussion on www.e-draft.am, the unified website for publishing drafts of legal acts, please, find below the joint concerns and recommendations of Eurasia Partnership Foundation (EPF) and Collaboration for Democracy Center NGO with regard to these drafts.

1. Draft Law of the Republic of Armenia “On making an amendment to the Law of the Republic of Armenia ‘On freedom of conscience and religious organizations’” (hereinafter referred to as “the Draft”):
1.1 Concern: based on the regulations of the Draft it can be inferred that the Draft doesn’t apply to the activities of Holy Armenian Apostolic Church (hereinafter referred to as “ACC”) and that the latter is not deemed as a religious organization, which is problematic in terms of combating religious-based discrimination.
The Draft governs the relations pertaining to the exercise by everyone of his/her freedom of thought, conscience and religion and to the establishment and activities of religious organizations (Article 1, part 1). At the same time the Draft stipulates that the relations between Armenia and AAC shall be regulated by the separate RA Law “On the relations between the Republic of Armenia and the Holy Armenian Apostolic Church” (Article 1, part 2). Furthermore, based on the amendments to the RA Law “On the relations between the Republic of Armenia and the Holy Armenian Apostolic Church”, the RA Law “On freedom of conscience and religious organizations” (the Draft) is removed from the list of applicable legislation to AAC (Article 1). Whereas, the operating law “On the relations between the Republic of Armenia and the Holy Armenian Apostolic Church” envisages that the relations between the State and AAC are, inter alia, regulated by the RA Law “On freedom of conscience and religious organizations” (Article 4). Thus, since the activities of AAC will no longer be governed by the RA Law “On freedom of conscience and religious organizations” it can be inferred that AAC will not be deemed as a “religious organization” and, therefore, a number of provisions suggested by the draft laws((For example, the guarantees for securing the freedom of thought, conscience and religion, the grounds for limiting exercise of the freedom of thought, conscience and religion, the prohibition of preaching religion or of attempts to preach religion in instructional or nursery or educational establishments, the accountability of activities of religious organizations, the supervision over the activities of religious organizations, the administrative liability for interfering with the exercise of the freedom of thought, conscience and religion, and many other norms.)), relating to the right to freedom of thought, conscience and religion, will not apply to AAC. While acknowledging that the recognition of the dominant role of AAC does not itself contradict the international standards, we, nevertheless, find that the above-mentioned differentiation provided by these drafts is questionable from the point of fair and proper treatment of religious communities. Subsequently, it creates unequal conditions for the activities of AAC on the one hand, and of other religious communities on the other. To note, such concerns were raised by the OSCE/ODIHR-Venice Commission Joint Opinion of 17 October 2011 for Armenia, which stated, in particular, that such differentiation is prohibited if it results in discriminatory treatment to other religious communities not having a similar special status.
Recommendation: to avoid misinterpretation of the Draft as well as based on the Article 29 of the RA Constitution, which guarantees prohibition of discrimination on the grounds of religion, the Draft should equally cover the relations pertaining to the activities of AAC and stipulate its legal status as a “religious organization”.

1.2 Concern: the Draft prescribes “state security” as a ground for limiting the exercise of the right to freedom of thought, conscious and religion, which doesn’t stem from Armenia’s commitments under international law. At the same time, the Draft doesn’t set forth the “necessary in a democratic society” international standard for restricting this right.
The grounds for limiting the exercise of the freedom of thought, conscience and religion, prescribed by the Draft, are problematic, as the above-mentioned provision stipulates, among other things, the concept of “state security” as a ground for limiting that right (Article 5, part 1). However, limitation on such ground is not permitted under paragraph 2 of Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the ECHR”), as well as Article 18(3) of the International Covenant on Civil and Political Rights. Furthermore, the European Court of Human Rights (hereinafter referred to as “ECtHR”) noted in its case-law that the ECHR does not allow restrictions on the ground of national security, and the non-inclusion of that particular ground for limitations in the Convention reflects the primordial importance of religious pluralism as one of the foundations of a ‘democratic society’ within the meaning of the Convention((See Nolan and K. v. Russia, no. 2512/04, § 73, 12 February 2009.)). Additionally, the Draft doesn’t indicate the “necessary in a democratic society” test as a justification for interfering with the right to freedom of thought, conscious and religion, which comes into conflict with the wording of paragraph 2 of Article 9 of the ECHR((“2. The freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”)). To note, the importance of inclusion of the “necessary in a democratic society” standard when stipulating the grounds for limiting the freedom of thought, conscience and religion by legislation has been emphasized by the Venice Commission and the OSCE/ODIHR in their Joint Opinion for Armenia((CDL-AD(2011)028, Joint Opinion of the Venice Commission and the OSCE/ODIHR “On the draft Law of the Republic of Armenia on Freedom of Conscience and Religious Organizations and draft Laws on making amendments and supplements to other related legal acts”, § 34.)).
Recommendation: the ground of “state security” for limiting the freedom of religion, introduced in the Article 5, part 1 of the Draft, must be replaced by “public safety”, in conformity with paragraph 2 of Article 9 of the ECHR. At the same time, the standard of “necessary in a democratic society” shall be added in the same clause in compliance with paragraph 2 of Article 9 of the ECHR.

1.3 Concern: the Draft creates a legal basis for AAC to conduct religious preaching at educational institutions, which contradicts to international commitments in the area of protection of the rights of the child undertaken by Armenia.
By virtue of the Draft, the exercise of the freedom of thought, conscience and religion shall be limited, where religion is preached or attempts are made to preach religion, without the consent of the parents or other legal representatives, in instructional or nursery or educational establishments, where minors under the age of 14 receive instruction or education (Article 5, part 2, point 3). At the same time, pursuant to the RA Law “On general education”, religious activities and preaching in educational establishments are prohibited, except for the cases prescribed by law (Article 4, part 8). Furthermore the law, i.e. the RA Law “On the relations between the Republic of Armenia and the Holy Armenian Apostolic Church” prescribes the right of the Holy Armenian Apostolic Church to participate in drawing up the syllabus and the textbook of the subject “History of the Armenian Church” and set out the requirements for qualification of teachers teaching that subject and to submit candidacies for such teachers to the schools (Article 8, part 1, point 2). Hence, the limitations on religious preaching at educational institutions apply to all religious organizations, except for AAC, as its legal status of being a religious organization is unclear. Such legislative attitude raises concerns in terms of protecting the freedom of thought, conscience and religion of the child (as the preaching at schools by AAC is normally carried out under the “History of the Armenian Church” subject), as well as in terms of its inconformity with the OSCE Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools and with various international commitments of the Republic of Armenia (International Covenant on Civil and Political Rights, Convention on the Rights of the Child, etc.).
Recommendation: amend the Draft by making restrictions on carrying out religious preaching in educational institutions equally applicable to the activities of AAC.

1.4 Concern: the procedure of establishment of religious organizations is set out in the RA Law “On non-governmental organizations”, which comes into conflict with some other provisions of the Draft and contains a risk of confusion of “non-governmental organizations” with “religious organizations”.
Pursuant to part 3 of Article 8 of the Draft, Articles 10-12 of the RA Law “On non-governmental organizations” apply to the relations pertaining to establishment of religious organizations. Taking account of the peculiarities of the religious organization, as an institute through which the freedom of thought, conscience and religion is exercised, we consider that the legislative attempts to define its status even as partially equivalent to that of a non-governmental organization are inexpedient. Besides, Articles 10-12 of the Law of the Republic of Armenia “On non-governmental organizations” contain such provisions as are inapplicable to religious organizations, such as, for example, “an organization may be established by at least two, physical and (or) legal, persons” (whereas, within the meaning of this Draft, a religious organization is an association of physical persons only).
Recommendation: remove the reference to the RA Law “On non-governmental organizations” from the Draft and introduce a new provision envisaging the procedure of establishment of religious organizations.

1.5 Concern: the requirement of the Draft that the charter of a religious organization must stipulate the faith affiliation and the description of its belief or conviction is problematic, since it might become an additional tool for the RA State Revenue Committee (hereinafter referred to as: Authorized Body) for arbitrary refusal of registration of the religious organization.
The Draft, provides that the charter of a religious organization must stipulate the faith affiliation and the description of the belief or conviction of the religious organization (Article 8, part 2, points 14 and 15). It follows that if these particular points are not included or, according to the opinion of the Authorized Body, are included in an inappropriate or unacceptable manner into the charter of the religious organizations, this may result in a violation of Article 36 of the Law of the Republic of Armenia “On state registration of legal persons, state record-registration of separate subdivisions of legal persons, institutions, and individual entrepreneurs”, which defines the grounds and procedure for refusal of state registration of legal persons. Thus, the requirements of including the faith affiliation and the description of the belief or conviction in the charter of the religious organization must be stated in a way as to safeguard religious organizations against an arbitrary refusal by the Authorized Body. To note, the Venice Commission and the OSCE/ODIHR stated in the Joint Opinion for Armenia, in particular, that the law governing the field should not require the inclusion of excessively detailed information in the statute of the religious organization. Refusal of registration on the basis of a failure to provide all information should not be used as a form of arbitrary refusal of registration((CDL-AD(2011)028, Joint Opinion of the Venice Commission and the OSCE/ODIHR “On the draft Law of the Republic of Armenia on Freedom of Conscience and Religious Organizations and draft Laws on making amendments and supplements to other related legal acts”, §66.)).
Recommendation: reformulate the requirement of including the faith affiliation and the description of the belief or conviction of the religious organization in its charter to safeguard religious organizations against an arbitrary refusal by the Authorized Body (for example, at the time of registration, a religious organization might only be required to provide to the Authorized Body certain information concerning its faith affiliation, belief or conviction, which, irrespective of its content, may not serve as a ground for refusal of the registration of the religious organization).

1.6 Concern: due to contradictions in the Draft the religious organizations might be deprived of an opportunity to receive foreign funding.
The Draft Draft vests religious organizations with the right to apply to other persons and organizations for voluntary monetary and other donations, to receive and dispose of them (Article 10, part 2, point). At the same time religious organizations may not be financed from and may not finance their spiritual centers and political parties located outside of the territory of the Republic of Armenia (Article 11, part 4). These regulations imply that on the one hand, religious organizations are entitled to receive monetary donation from other organizations (which is quite a broad concept and might be interpreted as spiritual centers located outside of the territory of the Republic of Armenia), on the other hand, they are deprived of such a right, since the term “religious association” also encompasses the “religious organization” category (Article 3, part 1, point 2).
Recommendation: review the afore-mentioned noncompliance, bearing in mind the OSCE/ODIHR-Venice Commission Joint Opinion for Armenia, which considers the blanket prohibition of foreign financing of religious communities to be unreasonable and emphasizes the incompatibility of such prohibition with the requirements of Article 9 of the ECHR, i.e. absence of the “necessary in a democratic society” standard((See ibid, § 76.)).

1.7 Concern: the Draft employs the term “member” of a religious organization, which is rather typical for non-governmental organizations. Apart from that, religious organizations are obliged to keep records of their members and provide documents, related to their activities to the Authorized Body which the Authorized Body can interpret arbitrarily, up to compelling to disclose the religious belief or affiliation.
The Draft defines that the report of the religious organization shall include the number of members as well as volunteers, with an indication of use of funds of the organization during the reporting year (Article 13, point 6, part 3). Whilst, the legal category of “membership” is not applicable for religious organizations, given the specificity of religious organizations. In this regard, the terms “follower” and “servant” are more widely used, where the Authorized Body may only be provided with data on “servants”, given the publicity of their activities. At the same time, religious organizations are obliged to keep records of their members (Article 11, part 2, point 1) and are obliged to provide documents, related to their activities, to the Authorized Body within reasonable time limits, at the lawful and reasoned request of the Authorized Body, so that the Authorized Body checks the compliance of the religious organization’s activities with the requirements of this Law (Article 11, part 2, point 3). It needs to be mentioned, that the requirement of keeping records of members creates an undue administrative burden for religious organizations, as well as it is questionable in terms of the right to not disclose religious convictions of members of a religious organization. Moreover, the requirement to “provide documents related to the religious organization” creates a basis for broad interpretation and does not preclude situations, where the Authorized Body might request documents containing personal data of members of religious organizations. To note, the Human Rights Committee emphasized, in interpreting Articles 17 and 18(2) of the International Covenant on Civil and Political Rights, that no one can be compelled to reveal his thoughts or adherence to a religion or belief((UN Human Rights Committee, General Comment 22, § 3.)). Such obligation may arise in exceptional circumstances (for example, in case of exercising certain rights or privileges conditioned by religion or belief), which were addressed by the ECtHR in its respective judgments((See, e.g. Kosteski v. “the former Yugoslav Republic of Macedonia”, no. 55170/00, 13 April 2006, §39.)).
Recommendation: replace the term “member” of the religious organization be replaced by “follower” and “servant” concepts and remove the requirement of record-keeping of the members of the organization. Further, clearly provide an exhaustive list of documents on activities of the religious organization to be requested by the Authorized Body in case such necessity arises.

2. Concern: a number of legal acts, currently operating in Armenia, expressly prohibit membership to any religious association and/or organization for law enforcement servants. Furthermore, this might not apply to the followers of AAC given the ambiguous formulations which allow to infer that, the AAC doesn’t have a legal status of a “religious organization”.
The Law of the Republic of Armenia (hereinafter referred to as “RA”) “On military service”( Article 1, part 3, point 3), the RA Law “On service in the Police” (Article 39, part 1, point 7), the RA Law “On service in the national security bodies” (Article 43, part 1, point 8), the RA Law “On rescue service” (Article 39, part 1, point (e), the RA Law “On penitentiary service” (Article 32, part 1, point 7), the RA Law “On Judicial Acts Compulsory Enforcement Service” (Article 30, part 1, point 7), prohibit membership of servants of the above-mentioned fields to a religious association or religious organization. This, we believe, unlawfully limits the right of everyone to freedom of thought, conscience and religion guaranteed by Article 41 of the Constitution, and, even further, it does not stem from the international commitments of the Republic of Armenia. Moreover, given the ambiguous legislative wordings as to whether the AAC is a religious organization, it follows that such prohibition might not apply to the followers of the AAC, which is an obvious manifestation of discrimination.
Recommendation: include into the package of the suggested draft laws draft amendments to the discussed list of laws, which will remove the prohibition of law enforcement servants’ membership to religious associations and/or religious organizations.

3. Draft Law of the Republic of Armenia “On making amendments and a supplement to the Code of Administrative Offences of the Republic of Armenia” (hereinafter referred to as “the Draft”):
3.1 Concern: the Authorized Body is vested with the power to impose various sanctions in case the religious organization carries out activities incompatible with its “charter objectives”, which is a broad notion and can be arbitrarily construed and not always in favor of the religious organization.
The Draft suggests amending the Article 205.3 of the current Code of Administrative Offences of the Republic of Armenia, stipulating the power of the Authorized Body to impose various sanctions in case the religious organization carries out activities incompatible with its charter objectives (Article 3). This clause is questionable and might result in an undue limitation of activities of religious organizations, since the concept of “charter objectives” is generic and can be interpreted in an ambiguous manner, resulting in imposition of arbitrary, unlawful and disproportionate sanctions on religious organizations by the Authorized Body.
Recommendation: clarify the legal content of the term “charter objectives”.

Yours sincerely,

Gevorg Ter-Gabrielyan
EPF Chief Executive Officer

Stepan Danielyan
Chairman of “Collaboration for Democracy» Center