Venice Commission Confirms the Validity of Charges Against Robert Kocharian

The study of the advisory opinion issued by the Venice Commission based on the request of the Constitutional Court of the Republic of Armenia shows that contrary to the claims presented, there are no conclusions regarding the vagueness of the provisions defining the elements of the crime of overthrowing the constitutional order as stipulated in Article 300.1 of the RA Criminal Code.

Moreover, it is obvious that the formulation of the crime of overthrowing the constitutional order under the RA Criminal Code significantly differs in terms of clarity from the formulations of similar crimes in other states. The positions of the Venice Commission also confirm the viability and validity of the legal interpretations presented in defense of the charges against Robert Kocharian.

Thus, the Venice Commission noted that there is no unified approach within international practice regarding the formulation of crimes against the constitutional order; some states refer to the constitution in its entirety, while others simply refer to the necessity of maintaining the constitutional order without defining it. Nevertheless, most provisions in criminal legislation indirectly refer to the constitution by citing constitutional principles such as sovereignty, territorial integrity, democracy, and elections or referring to specific constitutional institutions, such as parliament.

It is important to emphasize the Commission's observation that the concepts of constitutional order, overthrowing the constitutional order, and usurpation of power are not defined as such in the legislative provisions of the majority of member states. Many member states refer to the act of overthrowing the constitutional order as treason, that is, the intention or actual attempt to maliciously, forcibly, and unlawfully alter the constitution, which does not always require the actual overthrowing of the constitutional order.

The Commission also notes that acts described in broad terms, such as treason, rebellion, or insurrection, typically require elements of violence, force, or threats associated with the intent (or actual attempt) to direct the aforementioned violence or coercive actions against the constitutional order or other protected interests. The provisions that do not require violence or such intent typically provide for more specific acts (e.g., distributing and using the symbols and writings of unconstitutional parties or organizations), which are also essentially considered unconstitutional.

Finally, the Venice Commission points out that respecting the principle of the prohibition of retroactive effect of criminal laws and the requirement for sufficient clarity and precision of definitions of criminal acts in laws, criticism of ambiguities regarding the concepts of constitutional order and overthrowing the constitutional order may be mitigated, as there seems to be a 'consensus' among member states to leave these concepts vague or undefined.

This leads to the conclusion that the definitions given for the elements of the crime of overthrowing the constitutional order in the criminal codes of member (and non-member) states are not more specific than the definitions provided in the previous and current wording of Article 300 and 300.1 of the RA Criminal Code. In any case, the concepts of 'constitutional order' or 'overthrowing the constitutional order' used therein are not legislatively defined, and their interpretations should be provided in judicial law, as is the case with the overwhelming majority of norms in criminal law.

Moreover, the interpretation by Robert Kocharian's defenders that differences in the terminological definitions noted in the legislation studied by the Commission also indicate the vagueness of the elements of the crime is unfounded. The Commission has noted these and generally the differences in legal regulation and the absence of legal practice to illustrate the impossibility of presenting a unified or best practice. Such differences, such as those expressed in the terms used in the elements of the crime, were not viewed as rendering them vague.

Furthermore, the Commission has not only failed to find any provision regarding the vagueness of the discussed norms but has, on the contrary, noted that criticisms regarding vagueness may be mitigated under such conditions. It is important to state that the interpretation of the concept of 'constitutional order' upon which the charges against Robert Kocharian are based has been and remains established in the scientific, educational, and academic literature of constitutional law, which was of significant importance, also with professional consultancy, for understanding the permissible limits of behavior when committing an act and framing it accordingly.

The content of the concept of 'constitutional order' is also elucidated in the jurisprudence of the RA Constitutional Court, which emphasizes the constitutional values that in the international experience have been enumerated in the Venice Commission's conclusion, such as sovereignty, democracy, elections, etc. For ensuring the specificity of the elements of crimes against the constitutional order, according to international experience, the element of violence, which holds significant importance, has also been realized in the charges brought against Robert Kocharian, who has been charged with overthrowing the constitutional order by means of violence.

Moreover, the charges specify the actions attributed to the accused and the consequences—the damage to the constitutional values that form the essence of the overthrowing of the constitutional order, which has resulted from these actions.