The Prosecutor General's Office Statement on ECHR Decision

The Prosecutor General's Office of Armenia has issued a statement regarding the advisory opinion of the European Court of Human Rights (ECHR) concerning the case of former President Robert Kocharian. The statement reads:

“Numerous media outlets have sought to express a stance based on the request made to the Constitutional Court of Armenia regarding the advisory opinion of the ECHR Grand Chamber, issued on May 29, 2020. Considering the significant public interest and the fact that the defense lawyers of R. Kocharian hastily presented strictly one-sided and, in essence, manipulative interpretations regarding this advisory opinion without waiting for its publication and official translation, we are compelled to provide brief and general clarifications based on the announcement available on the ECHR's official website and its unofficial translation.

The Constitutional Court of Armenia requested an advisory opinion from the ECHR on July 18, 2019, based on Article 1 of Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, posing four questions (which are not specified here due to redundancy and the fact they have already been published).

In its advisory opinion regarding these questions, the ECHR Grand Chamber unanimously accepted that it cannot respond to the first two questions due to the lack of logical connection between the questions posed and the specific circumstances of the case.

As for the raised third question, the ECHR found that a legal provision that utilizes blanket references for criminalizing actions or omissions is not inherently inconsistent with Article 7. The provision referenced should, through a combined reading, enable individuals, if necessary, with the assistance of legal consultation, to foresee what conduct would result in criminal liability. Among other things, the most effective means of ensuring clarity and foreseeability is to make references explicit, with elements of the offense defined in the referencing provision.

In other words, the Grand Chamber does not consider it a problem, and especially not in contradiction to the Convention, to provision criminal norms as blanket constitutional norms, once again referencing the general principle of legal certainty and foreseeability. In this case, it pertains to a segment defined by Article 300.1 of the Armenian Criminal Code, where references are made to the provisions of the Armenian Constitution. The position expressed by the ECHR Grand Chamber regarding this principle of criminal law is at the core of the charges against R. Kocharian.

Addressing the fourth question raised, it is important to note that the Grand Chamber rightly emphasized what the Armenian Prosecutor's Office has repeatedly stated in its positions: that when assessing the application of retroactive effect of the law, one must consider the specific circumstances of the case, rather than abstract concepts.

We have repeatedly stated and justified that whether the newly provided criminal legal norm is more lenient or more stringent compared to another norm depends on the circumstances of the case. The same criminal legal norm can have different mitigating or aggravating implications for different individuals, depending on the specific act attributed to that individual and whether it fulfills the characteristics defined by the previous formulation of the criminal legal norm.

In this context, insofar as the individual in the specific criminal case is accused of violently overthrowing the constitutional order, which has been defined as a crime both in 2008 and currently under Article 300.1 of the Armenian Criminal Code, the norm established by this article cannot be deemed to worsen their situation.

It follows from the above that the advisory opinion provided by the Grand Chamber serves to substantiate that the actions undertaken by the bodies conducting the criminal prosecution have been and continue to be lawful.”