The NA ad hoc in charge of the revision of the Criminal Code of Armenia and in particular articles 104, 225, 300 and 301 received the conclusion of the Venice Commission (VC) relating to the new draft and formulation of articles. The first version of the revised code was sent to the Venice Commission in mid-February.
In its conclusion the Venice Commission mainly evaluated the version positive. Thus, in article 300, which relates to the usurpation of power, it was offered to differentiate the terms “usurp” and “maintain.” The VC evaluated this acceptable. It was also saluted that the person, who would warn the law-enforcers of the planned crime, should be excerpt from criminal responsibility. One of the proposed amendments would divide Article 300 into three parts detailing various forms of power usurpation. He said the working group also proposes to add a new article to the Criminal Code dealing with attempts to “overthrow constitutional order.” He indicated that it will be possible to apply these changes retroactively to the oppositionists charged under articles 225 and 300. The articles deal with provocation of “mass disorders” and “usurpation of state authority by force” respectively, accusations leveled against the most prominent of opposition members arrested following the February 2008 presidential election. Perhaps based on that the ad hoc decided to add one more provision in the second version, according to which if the actions defined by the article caused abstruse consequences then the culprit should be sentenced to a 10-15-year imprisonment. If not then the punishment should be tempered by defining 3-10-year imprisonment. The VC also saluted the third part of article 225, which relates to mass demonstrations with murder consequences. Under these circumstances the word murder was cut because it is already planned by article 104 of the criminal code. The revision of 225.1 and 104 articles was also accepted. During the first reading the 5th clause of this article was considered disputable, according to which if during the mass demonstration some person is removed from the scene he/she shouldn’t be subject to criminal punishment. The VC offered to use the phrase “conscious participation in mass demonstrations.” This recommendation is not included in the second version of the draft. Reminder: this provision particularly caused the criticism of the MPs. It was suggested cutting this part from the article. And the head of the ad hoc Davit Harutyunyan decided to leave this issue to the second reading. Let us also add that some of the revised articles brought up during the second version were not included in the draft sent to the VC and therefore the latter didn’t give either positive or negative evaluation. For example, the second version gives the definition of the mass disorder, which was not included in the current code and the first version. In the words of the ARF MP and member of the ad hoc Artsvik Minasyan the second version contains so many radical changes that it is not excluded that during the next 4-day session of the NA next week it may go through the second reading again (the NA bylaw enables this). Reminder: Minasyan was the only MP, who submitted recommendations regarding this revision. A part of his recommendations were accepted and the MP finds it a positive step for the draft. It is obvious that in this case a contradictory situation is created. The VC mainly considered the first version positive and the second is very different from that. It is not excluded that this time again the ad hoc may have ignored the opinion of the VC. The head of the ad hoc Davit Harutyunyan asked several questions to the VC. For example, the MPs were interested hat would the VC do if the same situation defined in article 225 on mass disorder if it occurred in their states. Harutyunyan tried to answer his question himself. Other opinions to be adopted by the Commission concern the admissibility of a constitutional referendum in Albania, constitutional amendments in Georgia, the Draft law on freedom to receive information in Armenia, the Law on the Constitutional Court of the Palestinian National Authority. Furthermore, the Commission will adopt reports on an internationally recognized status of election observers, European standards as regards the independence of the judicial system. “It is up to the court to decide whether the new norm should be applied in favor of the suspect or not and whether he was going to be vindicated or sentenced,” was the response of the VC. Having said that we can now only assume that will happen if the draft turns into a law and imagine its influence on the political detainees of March 1. Thus, once again everything was left to prosecutors and judges. And it’s not an accident that the opposition doesn’t accept the conclusions of the VC. “I think that this draft is not acceptable at all because in no democratic state there is no such understanding as mass disorder and the brought up formulations fit up in only one scenario. This would be very easy to do. The government would easily send a few provokers to turn the peaceful demonstration into a “mass disorder”. That way the law-enforcers will have the right to disperse the people by even using force. This is not a mechanism of solution and vice versa through this law the prohibition of mass demonstrations is enacted,” says the head of the Heritage faction Armen Martirosyan. According to Martirosyan maybe the government may release some of the political detainees. As of the positive opinion of the VC, Martirosyan reminds the revision of the Electoral Code of Armenia and the behavior of the VC in this regard. If certain provision were adopted it would be possible to find the ones, who voted instead of the dead citizens. The VC renounced this provision by stipulating that it contradicts to the principle of secrecy.
P.S. Later the press service of PACE disseminated a release according to which Venice Commission will discuss the mentioned issues of the Criminal Code of Armenia at its forthcoming plenary session on 13-14 March in Venice together with the draft law on freedom of information.