The Defender applied to the Constitutional Court to
challenge the criminalization of grave insult with vague formulations (The
important details of the application).
This refers to Article 137.1 of the Criminal Code of
Armenia, which considers swearing a person or insulting their dignity in an
obscene manner a grave insult. The other parts of the Article are even more
vague and complicated.
This Article is full with vague formulations, and is
deprived of concrete legal specifics, and has been adopted with gross procedural
errors.
The Defender specifically notes that hate speech, an
any speech directed against the dignity of another person or is generally
opposing freedom of speech is condemnable, and such vicious phenomena should
not have a place in our society
However, this does not imply that the State should
start operating with articles of the Criminal Code of Armenia which have vague
formulations, instead of implementing a directed, planned, and an organized
state policy to regulate this sphere, further complicating the situation. Any
adopted measure should be necessary and useful in the process of achieving the
legitimate goal set by the state.
This Article from the Criminal Code has already caused
certain issues, which will deepen; while the goals announced by the amendments
will not be met.
Firstly, it was unacceptable to adopt the daft during
a special session of the National Assembly, without wide public and
professional meaningful discussions. The discussion of the National Assembly has
further deepened the uncertainties.
In principle, the approach of the Government during
the draft stage of the Article of the Criminal Code was unacceptable land
condemnable. For example, instead of alleviating the concerns of certain
members of parliament, the official representative of the Government was
stating that they should rely on practice; or it is not clear with what
certainty some members are insisting in the National Assembly that the
Prosecutor’s Office of Armenia, the investigative bodies, lawyers and citizens
can distinguish the threshold of swearing and other insults.
It is evident that this so called threshold to
distinguish does not exist not only for citizens, but also for the Prosecutor’s
Office, the investigators and lawyers. This was also evidenced during the
discussions in the National Assembly. And the fact that the daft was a
legislative initiative does not imply that the Government should have announced
in the National Assembly that they should rely on practice, and instead of
seeking to pass the draft in a hurry, should have performed its duties to
produce guidelines, implement trainings, etc.
That is, both the executive and legislative branches have
ignored the fact that until judicial practice is formed, the investigative
bodies which can develop such a practice are faced with various problems. The
formulations of the commissions are such that the threshold of criminality has
been significantly reduced, since it does not have any feature or basis of
crime on which such an act should be revealed.
The process cannot move forward with such approaches
and only having hope on the formation of practice. This issue refers to the
rights of persons.
The process cannot proceed with the presumption that
it is not problematic if several people are deprived of their liberty or are
subjected to other legal interventions, because neither the legislative branch
nor the executive provided for practical clarity, clarity of goals, and even
certainty of discussions.
What makes the Article especially problematic is the
part which defines severe liability for severe insult, which is conditioned by
a person's public activity,
Public Activity can be considered journalistic
activities and activities related to the work of publicist; the performance of
official duties; activities related to holding public offices; and political
and public activities.
However, these formulations bring forward fundamental
issues.
For example, can video messages on social media (such
as Facebook live) which have become popular recently, various public
discussions, or similar civil activism be considered Public Activity?
Or what is Public Activity? Can being a member of any
party or being associated with a political party in any way or participating in
a few political actions be considered Political Activity? If yes, then becoming
a member of the party is in itself a protection from the citizens, including
through legal methods. This contradicts the foundations of democracy.
What is Public Activity? This is an unanswerable
question: Who carries out public activities, taking into consideration the fact
that many people consider themselves public figures?
This follows the logic that is a person wants legal
protection, then they must become a member of a political party, or declare
themselves to be a publicist or a public figure.
Since, except to Article 137.1(1), the other parts of
the Article are cases of public persecution, then to combat against punishable
acts under this article of the Criminal Code, the Police should conduct a total
investigation of all kinds of media and the posts, publications and comments of
thousands of users on social
networks (Facebook, Twitter, YouTube, etc.)
To the above-mentioned, we should the process of
distinguishing the thousands of fake users and their comments from the real
users. Posts from abroad, such as the Diaspora, should also be taken into
consideration.
Otherwise, full implementation of the law and,
consequently, the rule of law, an efficient fight against crime will not be
ensured. The legislative initiative itself will be meaningless; swearing and
hatred will remain in our public domain.
But these raise questions about, for example, what
capacity the law enforcement bodies and the courts have to implement this
process.
For instance, what should the Police or the criminal
prosecution body do if a swears at or insults a specific person in a foreign
language (for example, English, Russian, Spanish, or Polish)?
For example, does the Police or any investigative body
have the professional capacity to do all this; do they have rules for
interpreting swears and insults in other languages? There are many cases when
the insult in a foreign language is not like that in Armenian and vice versa-
the context being different.
It turns out that if the Police do not react properly
to all of the above, then we will deal with the discriminatory application of
Article 137.1 of the Criminal Code.
The state itself has put itself under that heavy
burden and will not be able to explain to some people why the state is
interfering with their rights, and not with rights of people swearing and
gravely insulting others. It will not be possible to justify it with concrete
cases due to the lack of state resources.
Consequently, through its own steps the state is
victimizing itself, the law enforcement and judicial systems, and leading to
forced discrimination.
It should be taken into consideration that the field
of criminal justice is the riskiest; it is the sphere where there are arrests,
detention, search of the apartment, operative-investigative measures, etc.
The application demonstrates with practical examples
the negative impact of the Article on constitutional human rights.
Moreover, the short-term application of Article 137.1
of the Criminal Code has already demonstrated that it is formulated to protect
the state officials from citizens. Even in practice, this is how it is
perceived.
With this application, the Human Rights Defender
petitioned to suspend Article 137.1 of the Criminal Code until the end of the
consideration of the case in the Constitutional Court.
Mr. Arman Tatoyan
The Human Rights Defender of Armenia
Հայերեն
