– The EU demands from the Armenian government to amend the articles 300 and 225 of the criminal code and release all political prisoners by April. According to your opinion what amendments should be made?
– The requirements of the EU are more general and are targeted at legal uncertainty and can result in balancing the legal application practice. That is why they want us to amend the articles 300 and 225. However, it is worth mentioning that the mentioned articles have been approved by the Venice commission in the past. First of all let’s interpret the article 225, which is entitled Mass Disorders, but it writes about the quality of such disorders, which are followed by violence, crash and firing. There can be small editorial changes to this article to make it more specific. The third part of this law is more unclear, which writes points on the actions specified in the first and second parts of the law, which are followed by murders. It means that in all cases when I organize such disorder, fire something, make violence and clampdown, it has to result in a murder in order to classify as a crime under that provision. However in this case this part has no sense because murder is a separate crime, and the international practice speaks only about the following: if there were other crimes during mass disorders as well, then these people are considered in a joint group and shall bear bigger responsibility. Our laws only write that if crimes are committed during mass disorders, it is considered as an additional condition. In a word, such murder has the same punishment as a simple murder. In such case there is no need for the mentioned article. The article in fact should write not “…which were followed by murder” but “…which were followed by or resulted in death”. These are different things. Because the crime of killing is specified clearly but the death is not connected with it at all. I mean that the result of both the mentioned crimes is ending up someone’s life, but in the one case the death is resulted from specific actions (firing, explosion, etc.), in the other case someone may get heart attack and die. In this case if there is any connection with actions then the criminals should bear more responsibility and punishment. It means that the third article of this law is extra and has no purpose. Imagine a situation when someone organizes mass disorders, and during this process someone who hates another man kills him. Why should the organizer bear responsibility for that if his actions are not directly connected with the crime? From this point of view the law is not specific.
– What about the article 300 concerning usurpation of state power?
– Yes, but there is no word of usurpation in the article, and by that article we only understand that the mentioned actions are committed for the purpose of usurpation and keeping of the state power with violence. In one case the law is about an action which has finished, i.e. the power used to belong to someone and I took it (it is the title of the law),on the other hand the entire article writes about actions targeted at such result, the punishment of which is the maximum established for such crime. If we look at the international practice, it can refer to three different laws. First, actions targeted at usurpation of the power, which exists here, i.e. an attempt of power usurpation. Second, I have organized it but have not undertaken any specific actions yet. Third, the power has already been usurped. It is equally about both collapsing the state power through violence, and violating the territorial integrity. It means that in all three cases we should deal with committed and finished crimes: organizing, attempting to organize and violating the Constitutional order. Each of these actions should have separate legal explanation. There uncertainty concerning violence and taking the power through violence. We have put the attempt, organizing and committing in one box and have established the maximum punishment (10-15 years of imprisonment). In other words, the purpose of the amendments should be the clarification of these issues.
– Do you mean that the law should be amended in a manner to make the power usurpation as organizing power usurpation and view the people accused under the mentioned articles as organizers?
– These are conditional separate solutions; the power usurpation, attempt of power usurpation and organizing power usurpation should be separate. Even if these understandings are not separated, the explanation of the crime nature should make it clear that we are dealing with three separate crimes.
– What changes should be made to release the people accused under the mentioned laws?
– Tell you frankly I don’t know the details of the Case of Seven and the legal conclusion. I don’t know the exact guiltiness of the mentioned people, thus I cannot answer your question. It depends on the logics of the amendments, and whether the prosecutor’s office may decide that the amendments have weakened the punishment and the nature of crime has changed. Only after this it will be clear what may happen.
– Do you mean that the allegations that as a result of the mentioned amendments the political prisoners will be set free are not true?
– I can’t say that.
P.S. The head of the Armenian delegation to the PACE, Davit Harutyunyan, has returned to Armenia from Georgia, where he met with representatives of the Venice Commission to discuss the issue of amending the articles 300 and 225. To note, the requirement of the recently adopted PACE resolution 1643 concerns amending the above mentioned articles, as a result of which, according to the Europeans, the political detainees imprisoned aftermath the March 1 events will be set free.