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Armenia’s Ombudsperson: “I do not feel that we learned our lesson from March 1”

by Armen Hakobyan

Published: Friday February 13, 2009

Armen Harutiunian, Armenia’s Ombudsperson. Photolure.

Yerevan - Could the events of March 1, 2008, be repeated? "God forbid," says Armen Harutiunian, Armenia's Ombudsperson.

In a report issued soon after the bloody clashes of March 1, the Office of the Human Rights Defender or Ombudsperson was critical of the actions of the government and law enforcement officials. This report, and Mr. Harutiunian's subsequent statements have made the office a credible and respected institution in a country where cynicism is widespread.

We asked Mr. Harutiunian his views about the decision of the Speaker of the National Assembly to seek amendments to Articles 225 and 300 of Armenia's Criminal Code.

The decision came about under pressure from the Parliamentary Assembly of the Council of Europe. The assembly's Monitoring Committee has been following the criminal cases emanating from the March 1 clashes and was prepared to conclude that Armenia is holding political prisoners.

One of the main contentions of the Monitoring Committee was that prosecutors were treating legitimate political protest as criminal activity, interpreting Article 225 (about mass unrest) and Article 300 (usurping power) broadly. The Speaker appointed a task force that would work with European institutions to recast those articles to remove any vagueness - within one month.

Under Article 22 of Armenia's constitution, amendments eliminating an offense or mitigating the punishment for an offense are retroactive.

Armenian Reporter: What exactly needs to be changed in Articles 225 and 300 of the Criminal Code?

Armen Harutiunian: To be honest with you, I do not know what needs to be changed, because they have not given me any information and I am not involved in the activities in any way.

I would like to note something else. Constantly improving the law is a good thing, but maybe it is time to think about how legal practice relates to the philosophy on which the legislation is based. There is the letter of the law, and the spirit of the law. The letter of the law must be interpreted through the spirit of the law. The spirit of the law says that human rights are supreme values. In other words, the principle of the supremacy of human rights is the foundation. It is possible to offer a legal interpretation that gives the impression that the word of the law is not violated but in fact violates the spirit of the law. In other words, it does not benefit the defense of rights.

If we amend those articles, we show that things are not very well in our legal practice. No matter what weaknesses we find and try to change in these two articles, we must remember that the [existing] Criminal Code has passed the assessment of the Venice Commission [the European Commission for Democracy through Law] and it complies in general with European standards.

In other words, if our legal practice worked from the point of view of defense of rights, possibly this change would not be necessary.

AR: It is said that those articles must be depoliticized, which implies that they are currently politicized. As a professional lawyer are you of that opinion?

AH: It is not whether the articles were or are politicized, but that they allow a wide scope of interpretation, leaving everything to the conscience of those who enforce the law.

In other words, if our law enforcement bodies - specifically, in this case, the Prosecutor General's office and the Special Investigations Service - interpreted the law in favor of human rights in their activities, maybe such an issue would not have arisen.

In any case, the possibility for broad interpretation does not mean that problems must arise in legal practice. In this case the issue is the legal specificity of the present formulations in the articles. For example, what are "mass disorders" and "activities aimed at seizing authority?" Or, for example, [penalties are greater if the disorders are]  "accompanied by killing"; [this] should be "accompanied by death," which is more precise. If all these formulations present in the articles are made more specific, of course, it will be much better. But if legal practice does not move toward the point of view of respecting human rights, in any case we will have problems.

AR: Is the main emphasis of the changes so that it will be possible to drop the charges or change the severity of the charges for certain people in the Case of Seven [where a former foreign minister and three members of parliament are on trial]?

AH: I cannot say. From a purely legal point of view, once those changes are implemented, the prosecutor must determine whether they can change the substance and magnitude of the charges. This will also depend on interpretation.

AR: The Armenian authorities have taken steps to change the rules of court procedure in criminal cases to allow the trial to continue in the absence of the defendants if the defendants are removed from court for contempt. Clearly, the target is the Case of Seven: the defendants do not rise when the judge enters the courtroom and so he removes them and postpones the trial.

AH: The supreme interest, the implementation of justice, is of course important. However, the sanctions ensuring the implementation of justice must be proportional and exceptional. In other words, if a defendant is permanently disrupting a trial, and there is truly no other way to ensure the supreme interest of the implementation of justice, only then should [the trial proceed in the absence of the defendant.]

We must avoid using it if it is possible to go forward by any other route. For example, if someone has no confidence in the court and is demonstrating his or her political views by not standing up, then, in this case, removing him or her from the courtroom as a sanction does not correspond to the idea of proportionality and exceptionality at all. He or she can be fined and the court process can continue. If you hold a political stance and consider the court to be "fictitious," you do not accept it, and therefore do not stand up; this is a different thing and removal from the courtroom for this is unacceptable for me.