Clarification of the Ministry of Justice regarding the message disseminated by the Chamber of Advocates

On 27 April 2020, the Standing Committee on Protection of Human Rights and Public Affairs of the National Assembly held a discussion on the draft Law “On making amendments to the Criminal Code of the Republic of Armenia” submitted by the “Bright Armenia” parliamentary faction, which envisaged criminalising obstruction of the professional activities of an advocate during the exercise of his or her powers, as well as offending or defaming the advocate in relation to the exercise of his or her powers.

A message has been posted on the official website of the Chamber of Advocates, stating that representative of the Government, Deputy Minister of Justice Srbuhi Galyan has objected to the initiative to criminalise the act of offending or defaming an advocate.

The specified claim does not fully reflect the arguments presented by the representative of the Government. Presenting fragmentary passages from the speech of the representative of the Government and sparking misunderstanding is unacceptable; thus, the Ministry deems it necessary to touch upon the arguments brought in regard to the specified draft Law. In particular:

(1)    upon the recommendation of the Government, comments on the Draft were submitted, that were aimed at ruling out the problematic regulations of the Draft and improving it. For instance: (1) it was recommended to clarify the manifestations of threatening an advocate, (2) taking into account the fact that, in practice, the persons next of kin of advocates or persons under their upbringing, care or supervision may also be threatened, it was recommended to expand the legislative formulation by including the specified persons as well, etc. In other words, the representative of the Government did not object to the legislative initiative but, on the contrary, stated that the regulations in the Draft are acceptable, by only insisting on the recommendation to rule out criminalisation of defamation and offence that was presented upon the recommendation of the Government;

(2)    the representative of the Government, touching upon the grounds for decriminalisation of defamation, referred to Resolution 1577(2007) of the Parliamentary Assembly of the Council of Europe of 4 October 2007 Towards decriminalisation of defamation, the title of which already earmarks the interpretation of the content of the Resolution. Stressing the fact that laws related to defamation pursue the legitimate aim of protecting the rights and good reputation of other persons, the Assembly, nevertheless, recommended states to apply these laws with utmost restraint since they can seriously infringe freedom of expression.

The Constitutional Court has also recorded upon its Decision SDVo-997 that, after the adoption of this Resolution, around a dozen member states of the Council of Europe, including Armenia have undertaken relevant legislative amendments aimed at decriminalisation of offence and defamation (Articles 135 and 136 of the Criminal Code of the Republic of Armenia were repealed by Law HO-98-N of 18 May 2010, and under Law HO-97-N adopted on the same day, the Civil Code of the Republic of Armenia was also supplemented with the disputed Article 1087.1).

That is to say, European countries, changing their criminal policies, have refused to use the toolkit for responding to cases of defamation at the criminal-legal level;

(3)    the representative of the Government emphasised that the mere argument that the criminal liability envisaged for defaming a judge, prosecutor, investigator, person conducting inquest, or a compulsory enforcement officer still exists in the Criminal Code, may not unequivocally substantiate the need for existence thereof and the inclusion of an advocate through expansion of the subject matter as well. By making reference to public statistical sources, the representative of the Government recorded that, in practice, it is not corpus delicti that is applied and widely common, and even if a criminal case has been instituted, it has not reached the stage of trial.

Moreover, taking into account the explicit claims of the experts of the Council of Europe, criminal liability has not been envisaged for defamation against any entity under the draft new Criminal Code.

The clarifications brought make it more than clear in their entirety that the fragmentary citation of the position voiced by the representative of the Government on the Draft in the press release issued by the Chamber of Advocates does not correspond to the position of the Government on the Draft.