Ombudsman's Position on Criminal Prosecution of Gharib Babayan

Based on information published by mass media regarding the criminal prosecution against Gharib Babayan, the Human Rights Defender has initiated a discussion procedure within his staff, where clarifications will be requested from competent authorities.

“Considering the legal restrictions imposed on the Human Rights Defender and the legislative requirement to refrain from interfering in the activities of the judiciary, while avoiding making the inquiry regarding different circumstances of the case a subject of discussion, which falls under the jurisdiction of other bodies at this stage, the Human Rights Defender emphasizes the importance of examining the investigation practices regarding incitement to hatred and calls for violence in accordance with international standards,” the statement reads.

The Human Rights Defender had addressed the international standards regarding the investigation of cases of incitement to hatred and calls for violence, along with issues concerning the practice of examining these cases in Armenia, in a study published in 2023 titled “The Investigation of Cases of Incitement to Hatred and Calls for Violence in the Criminal Justice System of the Republic of Armenia.” This study covered both the relevant international standards and the existing practice issues in Armenia.

International legal standards regarding hate speech detail all circumstances that need to be considered when assessing the legality of restrictions on freedom of expression in cases of incitement to hatred. Accordingly, in matters of public interest, there is a narrow scope within which speech can be legally restricted, particularly when such restriction occurs through criminal legal procedures, which must be supported by compelling reasons.

Furthermore, the permissible boundaries of criticism directed at political figures and state officials are broader than those for private individuals, and the state must exercise caution in resorting to criminal legal measures for their protection, especially when other means exist to respond to unjustified criticism.

According to international standards, when making conclusions about the existence of hate or incitement to violence, several factors must be considered, such as the target of the speech and the vulnerability of the targeted group within that society. For instance, the European Court of Human Rights, while addressing derogatory, demeaning, and disrespectful criticism aimed at police, emphasized the need for a protection system for police officers while also underscoring that, in the context of criminal legal protections against insults, ridicule, or defamation, the police as a law enforcement body cannot be viewed as an unprotected minority or a historically oppressed group.

Based on the analysis of the publication made by the individual and the communiqué from the competent body, taking into account the aforementioned standards, the Human Rights Defender considers the initiation of public criminal prosecution against the individual under Article 329 of the Criminal Code concerning the stated facts to be alarming. Such an initiative could have serious negative consequences, potentially leading to the development of investigations into incitement to hatred in non-compliance with international standards and posing a viewpoint for discretionary limitations on freedom of speech.

At the same time, the Human Rights Defender emphasizes that there can be no justification for the dissemination of hate speech, insults, ridicule, or defamation against any group within society, including political figures, representatives of power, and public servants based on any protected characteristic. Such actions not only impede adequate political dialogue but also lead to numerous illegal consequences. Nevertheless, even in this situation, the application of criminal legal procedures for the purpose of protection against such speech must be supported by compelling reasons and align with international standards.

In the context of the information available at this stage, the Human Rights Defender refrains from making assessments regarding the necessity of examining other circumstances related to the issue of hate speech. This can be revisited upon the availability of additional information related to the alleged violations of human rights and the acquisition of necessary clarifications,” the Ombudsman’s statement concludes.