ECtHR Publishes Advisory Opinion on Constitutional Court Application in Robert Kocharyan Case

The European Court of Human Rights (ECtHR) has published an advisory opinion regarding the application of the Constitutional Court in the case of Robert Kocharyan.

According to the statement, the court unanimously accepted the following advisory opinion, stating that it could not respond to the first two questions posed by the Constitutional Court of Armenia.

The questions were: 1. Are the same qualitative requirements (specificity, accessibility, foreseeability, stability) imposed on the concept of 'law' defining a crime under Article 7 of the Convention and in other Articles, such as 8–11? 2. If not, what criteria delineate them? The court failed to establish a direct link between the inquiries and the ongoing domestic proceedings initiated against former President Robert Kocharyan, ostensibly for an attempted overthrow of the constitutional order in 2008.

The third question from the Constitutional Court asked whether a criminal statute defining a crime by referring to provisions of legal acts with a higher legal power and degree of abstraction meets the requirements of specificity, accessibility, foreseeability, and stability. The ECtHR found that such a provision, which utilizes a blanket reference or 'legislation by reference' technique for criminalizing actions or omissions, is not inherently incompatible with Article 7. The referenced provisions must allow individuals, with the aid of legal counsel if necessary, to foresee what conduct will lead to criminal liability.

Among other considerations, the most effective means of ensuring specificity and foreseeability is to make the references explicit, detailing the elements of the offense within the referencing provision.

The fourth question from the Constitutional Court relates to the principle of non-retroactivity of criminal law (Article 7(1) of the Convention), asking what criteria are set for comparing criminal laws that were in effect at the time of the offense and those amended thereafter to clarify their substantive similarities or differences. The court found that such assessments should consider the specific circumstances (principle of specification), rather than being conducted in an abstract manner.

The full text of the ECtHR's advisory opinion can be accessed through the provided link.