Based on the information published by mass media
regarding the criminal prosecution of Mr. Gharib Babayan, a discussion
procedure has been initiated within the Human Rights Defender’s Office upon the
Defender’s instruction. Within this framework, clarifications will be requested
from the competent authorities.
Taking into
consideration the legal restrictions imposed on the Human Rights Defender by
law and the legislative requirement to refrain from interfering in the
activities of bodies administering justice, without discussing the necessity of
examining various circumstances related to the case—which at this stage falls
under the jurisdiction of other bodies—the Human Rights Defender attaches great
importance to assessing the compliance of the criminal procedural practice of
investigating incitement to hatred and calls for violence with international
standards.
The Human Rights Defender had already addressed the
international standards, the practice of investigating incitement to hatred and
calls for violence in Armenia, and the existing issues in the 2023 study titled
“Investigation of Cases of Incitement to Hatred and Calls to Violence in the
Criminal Justice System of the Republic of Armenia”. This study examined both
relevant international standards and the challenges in the national practice.
International legal standards related to the examination of hate speech explicitly
outline all the factors that must be taken into consideration when assessing
the legitimacy of restrictions on freedom of expression in cases of incitement
to hatred.
Accordingly, in cases of statements, publications,
circulated materials, political debates, political criticism, and dialogue on
matters of public interest, the scope for lawful restrictions on speech is
quite narrow. If such restrictions are imposed, especially through criminal law
mechanisms, they must be justified by clearly compelling reasons.
Moreover, the permissible scope of criticism directed at
political figures and public authorities is broader than that for private
individuals. The state must exercise caution when resorting to criminal law
measures to protect them, especially when other means are available to respond
to unjust criticism.
In accordance with international standards, when
assessing the presence of incitement to hatred or violence, several factors
must be considered, such as the audience of the speech and the extent to which
the targeted individual or group is vulnerable within that society. For
example, the European Court of Human Rights (ECtHR), in one of its rulings,
addressed the issue of derogatory, demeaning, and disrespectful language used
against law enforcement officers. While acknowledging the need for a protection
system for police officers, the ECtHR also emphasized that, in the context of
criminal law protection from insults, ridicule, or defamation, the police, as a
law enforcement body, cannot be regarded as an unprotected minority, a group
with a history of oppression or inequality, or a group subject to prejudice,
hostility, or discrimination, and thus cannot be considered inherently
vulnerable.
Based on the analysis of the individual’s publication and
the statement issued by the competent authority, and considering the
aforementioned standards, the Human Rights Defender finds it concerning that
public criminal prosecution has been initiated against the individual under
Article 329 of the Criminal Code. This situation could have serious negative
consequences, leading to the development of a criminal procedural practice
regarding incitement to hatred that does not conform to international standards
and creating discretionary restrictions on freedom of speech on this basis.
At the same time, the Human Rights Defender highlights
that the dissemination of hate speech, insults, ridicule, or defamation against
any group in society, including political figures, government representatives,
and public servants, based on a protected characteristic, is unacceptable. Such
actions not only fail to contribute to a proper political dialogue but also
result in numerous legal consequences. However, even in such cases, the
application of criminal law mechanisms for protection must be justified by
clearly compelling reasons and must comply with international standards.
At this stage, within the context of the available
information, the Human Rights Defender refrains from making any further
assessments regarding other aspects of the case beyond the issue of hate
speech. Additional assessments may be made if further information regarding
alleged human rights violations becomes available and if necessary,
clarifications are obtained.
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