Clarification of the Ministry of Justice regarding the statement by ex-Minister of Justice Gevorg Danielyan

Article 18 of the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse defines the crimes related to sexual abuse of children.

In particular, point "a" of part 1 of this article envisages that each Party shall criminalise engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities.

It is important to state that, for the purposes of the aforementioned first paragraph, each State shall decide the age below which it is prohibited to engage in sexual activities with a child, regardless of mutual consent.

Although part 3 of Article 18 states that the provisions of paragraph 1.a are not intended to govern consensual sexual activities between minors, let us mention that, pursuant to the Convention, each State shall decide the age below which it is prohibited to engage in such activities in accordance with the domestic law thereof.

Thereafter, point 129 of the Explanatory Report to the Convention states that the Convention does not aim to govern consensual sexual activities between minors, even if they are below the legal age for sexual activities as provided in internal law. Moreover, it is up to the discretion of the States to decide what age is deemed to be the age of a “minor”.

Summing up, it should be said that the Convention does not limit any State joining it to decide the minimum age below which engaging even in consensual sexual activities between persons will have criminal nature.

As far as the described case is concerned (eliminating, as a result of “prospective” changes, the corpus delicti of a person under 18 having consensual sexual activities with a person of the age of 12), it should be noted that sexual intercourse or other sexual activities with a person under 16 are provided for by Article 141 of the Criminal Code of the Republic of Armenia adopted on 18 April 2003. This article has never undergone any amendment that would result in change of the age for subjecting to criminal liability for the act in question (the age of 18).

Perhaps Mr Danielyan was referring to Article 114 of the Criminal Code of the Armenian Soviet Socialistic Republic, according to which deprivation of liberty was envisaged for engaging in sexual intercourse with a person under 16 or a person who has not reached the age of sexual maturity. The Criminal Code of the Armenian Soviet Socialistic Republic was repealed in 2003, and the Convention was adopted four years later.

 On Signing and Ratification

First of all, it should be noted that no liability for signing and then ratifying international treaties deriving from international law is envisaged for the States. Decisions on signing or not signing, ratifying or not ratifying an international treaty are actions deriving from the sovereignty of the State, and the legal assessment of the document and many other interests (political, ideological, economic, social, etc.), are reflected through the adoption of those decisions.

Nevertheless, pursuant to Article 18 of the 1969 Vienna Convention on the Law of Treaties, the States having signed the international treaty are obliged “to refrain from acts which would defeat the object and purpose of a treaty”. At the moment of signing, it was obvious that the Convention implied ratification.

It is important to record that the Convention was signed by the Republic of Armenia in September 2010 without reservation. Pursuant to the Law of the Republic of Armenia “On international treaties of the Republic of Armenia” that was in effect at that time, an opinion on appropriateness of signing during the process of domestic co-ordination carried out for signing the Convention was submitted both by the Ministry of Labour and Social Affairs (on 5 October 2009) and the Ministry of Justice (on 19 June 2010) of the time.

Therefore, we express our sincere gratitude to the Minister of Labour and Social Affairs and the Minister of Justice who were holding office at that time for laying the foundation for the process of ratification of the Convention.