Armenian civil society fights for the adoption of an anti-discrimination law

08.10.2019
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The NGO Pink began fighting for the adoption of an anti-discrimination law in Armenia in 2012. Since then, several drafts have been submitted for public debate, but these have been criticized by the Armenian Apostolic Church and several homophobic groups. The final version of the document, which was posted online for public consultation in 2017, contained a number of problematic provisions that could lead to its discriminatory application: aside from the fact that sexual orientation and gender identity are not listed as grounds for discrimination, one of the articles stipulates that the norms may only be applied if they correspond to the Law on the Armenian Apostolic Church. We released a statement that any law containing these kinds of provisions would not have a legitimate mechanism for ensuring protection under certain grounds and could potentially lead to discriminatory practices. One of Pink’s major achievements has been getting this article removed from the final version of the law.

At the same time, the draft fails to stipulate effective legal mechanisms for combatting discrimination in general and in relation to the LGBTI community in particular. We shared the following misgivings and recommendations with legislative bodies of Armenia:

  • Even though the LBGTI community is one of the most vulnerable and discriminated groups in Armenia, the list of characteristics protected by the anti-discrimination law does not include sexual orientation or gender identity. The fact that the European Court of Human Rights and the UN Human Rights Council have recognized SOGI as no less important than other protected characteristics has unfortunately not been a good enough argument for law enforcement bodies in Armenia, even though the country’s Constitution establishes the requirement to interpret human rights with account for the precedent law of international bodies and treaties. It is doubtful that national courts will actually apply the anti-discrimination law in cases where rights are violated because of SOGI if SOGI is not listed as a protected characteristic.
  • Add Article 8, which gives NGOs, nonprofits, and other interested parties the right to bring an action before a court in response to cases of discrimination to protect public interests (Actio popularis), thus guaranteeing access to justice for victims.
  • Add norms regarding burden of proof in discrimination cases that correspond to international human rights principles. In particular, when an applicant files a complaint with a court about alleged discrimination, that applicant should not have to prove an actual instance of discrimination, but should only have to set forth, prima facie, the circumstances and arguments that, in their opinion, led to discrimination and are sufficient to warrant consideration of the case in the absence of a proper rebuttal.
  • Another problem concerns the Council of Equality. This body’s independence is doubtful since, under the draft law, it must be integrated with the Office of the Human Rights Defender and is not given the authority to influence the course of proceedings in discrimination cases. The research on the legal possibilities of creating an independent and effective body was forwarded to the Ministry of Justice after negotiations between the government and the Non-Discrimination and Equality Coalition. The Ministry, however, has ignored this recommendation.

All of these recommendations have been rejected by the Ministry of Justice.

Armenian laws stipulate that public consultations must be conducted offline, but these consultations are now only happening on an online platform. We are waiting for the Ministry to respond to our request to organize public consultations offline. The next step is for parliament to discuss the bill, which is expected to happen in the fall.

After a long road of editing and revision, the draft was republished in July 2019 after the Velvet Revolution. The new government is resisting holding public consultations on the draft to avoid criticism from homophobic groups. In a changed situation, political opponents ae manipulating LGBTI issues to discredit the new government. Under these circumstances, the Ministry of Justice intends to ignore any appeals or requests to consider the bill.

Hasmik PETROSYAN, Pink attorney


 

Debates about the need for a comprehensive anti-discrimination law in Armenia began in 2013. In the spring of 2017, the Plan to Develop a National Strategy to Protect Human Rights for 2017–2019 envisaged the adoption of such a law, which was also a part of the EU budget support program for human rights.

A number of UN committees reviewing Armenia’s implementation of its obligations under international treaties have stressed that a comprehensive anti-discrimination law must be adopted, including to improve the situation of ethnic minorities and women.

A draft of the law “On Ensuring Equality” was submitted for public consultation in early 2018, but the revised version was never published because of the political situation. Human rights defenders and independent experts have submitted numerous proposals to amend the draft, but lawmakers determined that most of these were untenable and unconvincing. Members of civil society believe that the government intentionally tried to avoid wording that society did not approve of (this is why the name was changed from “anti-discrimination” to “On Equality”).

In late 2018, over 20 NGOs sent proposals for the draft, but these were unfortunately not accepted. The draft was published in June 2019, but only 16 days were allotted for public consultation.

Civil society noted the following problems with the draft:

  • incomplete list of characteristics protected from discrimination, including absence of SOGI;
  • incomplete list of types of discrimination: absence of the terms “reasonable accommodation” and “hate crime,” incomplete description of the term “victimization,” and lack of definitions of multiple and intersectional discrimination, despite recommendations from UN CEDAW experts to include a broad definition of discrimination against women encompassing not just direct and indirect discrimination, but also interrelated forms of discrimination;
  • the model of the equality body (Council on Equality) is not effective: the body has no authority to investigate cases of discrimination in the private sector, there are no legal guarantees regarding implementation of its decisions, there are insufficient human and financial resources, and there is no institutional insulation or visibility, given that Armenia’s Ministry of Justice emphasized that the Constitution does not allow for the creation of a separate equality body;
  • the draft does not envisage administrative sanctions or a mechanism for compensation for non-material damages caused by discrimination, or criminal liability for hate crimes.

Even though international experts recommended that the government accelerate the process of adopting an anti-discrimination law as far back as the spring of 2017, it is unlikely that the draft will be adopted by the end of 2019.

ADC Memorial has repeatedly raised the need for an anti-discrimination law in its reports to UN CEDAW and UN CERD and hopes that Armenia will soon join other countries in the region that have effective means of protection from discrimination.