LATEST PACE RESOLUTION SPURS LIMITED REFORM

C O N F I D E N T I A L SECTION 01 OF 04 YEREVAN 000078

SIPDIS

E.O. 12958: DECL: 02/09/2019
TAGS: PREL PGOV KDEM COE AM
SUBJECT: LATEST PACE RESOLUTION SPURS LIMITED REFORM
PROGRESS

REF: A. YEREVAN 26

B. YEREVAN 71

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Classified By: DCM Joseph Pennington, reasons 1.4 (b,d)

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SUMMARY
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1. (C) With its January 27 passage of Resolution
1643, the Parliamentary Assembly of the Council of
Europe (PACE) elected to give Armenia more time to
complete reforms highlighted in previous PACE
resolutions 1609 and 1620, focusing on the way
forward negotiated by rapporteurs John Prescott and
Georges Colombier (reftels). The Assembly also
stopped short of accusing Armenia of having
"political prisoners." After months of dilatory
reform progress, the GOAM now seems energized to
fulfill its promises to PACE to reform the criminal
code before the next PACE Monitoring Committee
meeting March 30. Ruling coalition figures have
suggested that the criminal code amendments will be
used as a face-saving mechanism to drop charges
against at least some defendants accused of the
March 1, 2008 violence. Whether this will amount,
de facto, to a complete amnesty, or a more
incremental solution is still unclear.


2. (C) Government officials were annoyed with
PACE's continued -- as they see it -- meddling in
Armenia's democratic problems, but now seem
relatively happy to have a concrete, achievable and
near-term plan that will get them back in PACE's
good graces and put this scrutiny behind them. The
opposition, meanwhile, is disappointed by what they
see as only tepid criticism of Armenian authorities
and a willingness to let the GOAM off the hook.
However, there is a more conspiratorial view in
opposition circles that sees the mild PACE
criticism as "proof" that a Nagorno Karabakh peace
deal is nigh, and reportedly is licking its chops
in anticipation of whipping up anti-government
populism over that issue. Some hope that, combined
with looming economic distress and Sargsian's
damaged legitimacy, the NK issue can arouse enough
public protest eventually to bring down the
government. END SUMMARY.

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RESOLUTION 1643
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3. (C) In Resolution 1643 adopted on January 27,
PACE welcomed several positive steps by Armenian
authorities, such as the establishment of the
multi-partisan factfinding group to inquire into
the events of March 1, the decision to draft
amendments to Articles 225 and 300 of the Criminal
Code, and the increasing number of pardons, 28 to
date, that have been granted by the President of
Armenia. (NOTE: The opposition complains bitterly
in public and privately that the pardons are a
sham. They claim that only a few of those pardons
were genuinely opposition figures -- who had been
coerced into falsely admitting guilt in exchange
for the pardons -- while the remainder were common
criminals or even government-sponsored "agents
provocateurs." They report that many of these
latter, politically-unknown figures had already
been freed from prison for one reason or another.
END NOTE)


4. (U) PACE called upon the Armenian authorities to
ensure that the fact-finding group is given full
access to information from all state bodies and
officials, including those that have left office or
have been replaced since the March 1 events. The
Resolution expressed regret that the authorities
have not so far used amnesty, pardons or the
dropping of charges to release all those who did
not personally commit a crime. The Assembly did not
use the term "political prisoners," instead
pointing out that "the charges against a
significant number of persons, especially those
charged under Articles 225-3 and 300 of the
Criminal Code and those based solely on police
evidence, could have been politically motivated."


5. (C) PACE decided not yet to suspend Armenia's

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delegation -- a largely symbolic step that would
deprive the Armenian delegation of voting rights in
the consultative Assembly, but would be an
unusually sharp, public rebuke of the country's
democracy performance. Instead, the Assembly
agreed with the strategy negotiated by co-
rapporteurs Prescott and Colombier to give Armenia
three more months to implement agreed reforms. As
forshadowed by Ref A, and confirmed by the National
Assembly speaker (Ref B),and now by Armenia's PACE
delegation MPs Davit Harutunian (Republican Party)
and Armen Rustamian (Dashnaksutyun),the compromise
hinges on Armenia's redrafting of its Criminal Code
articles 225 ("mass disorder") and 300 ("usurpation
of state power") to be explicit in defining the
necessary elements of the crime.

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RULING COALITION'S REACTION
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6. (U) In public, President Serzh Sargsian's
Republican Party praised PACE for not imposing
sanctions against Armenia and not using the term
"political prisoners." Republican Party
Spokesperson Eduard Sharmazanov proclaimed this a
victory and the result of the recent display of
political will and reforms of the President. Armen
Rustamian, ARF member of the Armenian delegation to
PACE, was more cautious in his positive public
assessments: "now the ball is on our side of the
field and we have to present proof of the work
realized before the session of PACE Monitoring
Committee due in late March." He commented that it
is crucial to ensure that the issue concerning
Armenia is not discussed at the spring session of
PACE. To do that, Armenian authorities will have
to undertake consistent steps in implementation of
PACE requirements.


7. (C) Privately, PACE Delegation leader Davit
Harutunian (who chairs parliament's State and Legal
Affairs Committee, which has jurisdiction over the
criminal code revisions),told Ambassador and
PolChief in separate conversations that he is
working as fast as he can to re-draft the relevant
criminal code amendments in time. Harutunian
claimed credit for having proposed this compromise
to National Assembly Speaker Hovik Abrahamian, who
then pitched it to Prescott and Colombier (with
President Sargsian's blessing). He commented that
the government's initial re-draft -- written by
Harutunian's despised rival, the Prosecutor General
-- was terrible, and he was re-writing it
completely. Harutunian said he had already spoken
for several hours with the Council of Europe's
designated Venice Commission representative
assigned to work with Armenia on this issue.


8. (C) Harutunian said he intended to present the
revised draft criminal code articles to the
National Assembly by February 19, and hoped they
would be approved on their first reading the week
of February 23, during the parliament's regular
session. The required second reading would follow
in "mid-March," which would keep Armenia on track
to implement the new procedures before the March 30
PACE monitoring committee session. Harutunian
mentioned that the revisions would clear the way
for authorities to drop some of the charges against
the opposition defendants; he predicted that the
article 300 charges would be dropped, but some
vestige of the article 225 charges would likely
remain to be prosecuted. He informed that under
the Armenian Constitution, ex post facto changes to
the criminal code are applied to pending cases if
they are to the advantage of the defendant.
Changes contrary to the interest of the defendant
cannot be applied retroactively.


9. (C) Harutunian said he had spent considerable
time urging the Venice Commission representative
to support the need for the revised Criminal Code
articles to be very explicit and leave no room for
judicial interpretation -- because judges and
prosecutors in Armenia have shown that they cannot
be counted on to exercise discretion fairly and
objectively, but will exploit any loopholes to
exercise prejudice in favor of the government's
preferred outcome.

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10. (C) PolChief also discussed the matter with
Harutunian's colleague on the PACE delegation,
Armen Rustamian, who chairs the Foreign Relations
committee in parliament and is also the Armenian
Revolutionary Federation (Dashnaksutyun)
representative to the Governing Coalition.
Rustamian confirmed Harutunian,s timetable, and
said the challenge in drafting the revisions was to
find the right balance between protecting freedom
of assembly, while also protecting the state from
bona fide threats to the constitutional order.
Rustamian predicted that the revisions would face
resistance from the Prosecutor General and Justice
Minister, but was confident they would nonetheless
pass, because "there is no choice." He noted that
his own party had been persecuted under former
President Levon Ter-Petrossian (LTP),whose
administration abused an earlier generation of
these same criminal code provisions to declare the
Dashnaks a threat to national security and the
constitutional order. Rustamian commented that the
Dashnaks have for months advocated within the
governing coalition for the political detainees to
be freed by an amnesty, but the dominant ruling
coalition partners had refused. He said the
current approach amounted to a much-delayed amnesty
by another name. He was confident the government
would use these revisions as a face-saving tactic
to free the remaining opposition detainees, after
dropping all charges.

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OPPOSITION'S REACTION
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11. (U) The opposition Armenian National Congress
(ANC),led by former president Levon Ter-
Petrossian, was far more skeptical of PACE
Resolution 1634. The ANC said publicly that
Armenian authorities are simply buying time with
cosmetic changes, and that PACE had been taken in
by this. In a statement released January 28, the
opposition alliance argued that most of about 60
oppositional prisoners have been charged under
different articles of the Criminal Code -- not (or
not only) 225 and 300. The ANC is concerned that
the issue of those prisoners remains unaddressed.
(NOTE: All of the "Trial of Seven" defendants, the
most prominent opposition figures jailed, are
charged under articles 225 and 300, though two of
them -- MPs Myasnik Malkhasian and Sasun Mikaelian
-- also face charges of felony resisting arrest and
illegal weapons possession. END NOTE)


12. (U) The ANC further criticized Prescott and
Colombier for avoiding meetings with the opposition
during their last trip to Yerevan. "We believe the
quality of their report, and consequently the
credibility of the PACE, has suffered as a result"
the ANC statement read. Senior ANC policy
coordinator Levon Zurabian lambasted Resolution
1634 in Strasbourg after it was adopted, saying it
was based on "one-sided and false information," and
accused the Assembly of being taken in by
government promises. Once back in Yerevan,
however, Zurabian took a more moderate tone
February 3, commenting that the resolution "creates
the basis for working to free the political
prisoners, and sets a particular course for
restoring democratic freedoms." Zurabian
reiterated that he did not trust the GOAM to
fulfill its commitments, implying that PACE will be
able to respond again if/when that proves true.


13. (C) The opposition Heritage Party also
complained scathingly about Resolution 1634,
publicly denouncing the Assembly for " compromising
its principles in Armenia and several other
countries in the region, including on freedom of
expression, justice, torture in prisons, and other
rights." In a private meeting with poloffs January
29, Heritage Faction Leader Armen Martirosian was
much more relaxed. He said the PACE decision not to
suspend Armenia was fair, since Armenia is viewed
in comparison with other countries that have
undergone democratic reversals but had not been
suspended. However, he felt the Assembly should
have left the term "political prisoners" in the
text of the Resolution in order to &sober up8 the

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Armenian authorities. LTP confidante and top ANC
leader Davit Shahnazarian expressed mild
disappointment with Resolution 1634, but did not
dwell on the issue, in a February 9 meeting with
Ambassador and PolChief.


14. (C) The acting chairman of the Armenian
National Movement, Khachik Kokobelian, which is a
leading constituent part of the ANC coalition, told
PolChief privately that many in the ANC leadership
had come around to the point of view that
Resolution 1634 is good news. He said they
interpreted the relative softness of 1634, as
evidence that Armenia and Azerbaijan must be close
to announcing a framework agreement on resolving
the Nagorno-Karabakh conflict. He said that ANC
headquarters was delighted with this prospect,
because they relished the chance to whip up
nationalist fervor against President Sargsian and
believed this would lend renewed passion to the
ANC's anti-government campaign. Kokobelian claimed
that he was thoroughly disgusted by such a
strategy, which he considered both highly cynical -
- given LTP's record on the issue as president --
and counter to Armenia's national interests in
achieving a peace settlement.

COMMENT
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15. (C) While Resolution 1634 may have backtracked
a bit more than we might have liked in its language
describing Armenia's continuing democratic deficit,
the approach of negotiating an achievable concrete
plan with the GOAM to get Armenian democracy back
on track with specific improvements seems a path of
constructive engagement. We hope that Rustamian is
more correct than Harutunian in his assessment that
all the politically-motivated defendants will be
freed as a result of the revisions. It is possible
that Harutunian is hedging to lower our
expectations, against the risk of a failure of
political will, but it is also entirely likely that
the government wants to hold onto some
prosecutorial leverage against the opposition
detainees if it feels it can get away with it.


16. (C) On the opposition side, as nutty as
Kokobelian's scenario may sound, we cannot rule out
that it may be a correct portrayal into the
opposition's thinking. That would explain the
disconnect between the opposition's public and
private tone on the issue. This kind of Byzantine
geopolitical reasoning and tendency to attribute
events to the supposed hidden agendas of the "great
powers" is very much in tune with how LTP and his
senior aides think. Nothing would so delight LTP,
we suspect, as to topple Serzh Sargsian using the
same issue and populist tactics that Sargsian (with
Robert Kocharian and the late Vazgen Sargsian) used
to oust Ter-Petrossian in 1998. Meanwhile,
Heritage leader Armen Martirosian also predicted to
PolChief that rising public anger over a cresting
economic crisis, combined with Sargsian's damaged
democratic legitimacy, will rally the people around
the opposition banner in greater numbers than ever
come springtime, and will ultimately topple the
government. ANC leaders continue to claim
privately that they will maintain a low public
profile -- in the face of internal pressure from
their supporters to be more aggressive -- so as to
leave authorities plenty of maneuvering room to
negotiate with Azerbaijan over Nagorno-Karabakh,
without being weakened by domestic discord.
YOVANOVITCH