Government approves drafts of new Criminal and Criminal Procedure Codes today

The drafts of the new Criminal and Criminal Procedure Codes were approved during today’s session of the Government.

Systemic changes are expected to be made after adoption of the two Codes.

By the draft Criminal Code of the Republic of Armenia:

(1)    Issues on the criminal legislation have been clarified; the legislation envisages subjecting a person having committed a criminal offence to liability and punishment proportionate to the act, returning him or her to society as a law-abiding person, ensuring his or her reintegration into society. In line with the objectives of the Strategy for the Penitentiary and Probation Sectors, the ideology of the transition from punitive policy to the policy on re-socialisation has been adopted in the Draft, setting re-socialisation of the person subjected to punishment as the goal of punishment. It is noteworthy that the regulations in the Draft are aimed at achieving this very goal, and this should help reduce the level of crime in the country.

(2)    In this regard, for example, the system of punishments has been revised, the list of penalties serving as an alternative to imprisonment has been expanded, envisaging new alternative types of punishment such as restriction on liberty ("house arrest") and expulsion of a foreign citizen from the territory of the Republic of Armenia. The procedures for application of the currently existing types of punishment have been improved. For example, the formed approach to application of the punishment of community service has changed. Community service has been directly provided for in the sanctions of Articles, and courts may impose this type of punishment without any precondition.

(3)    When referring to the system of punishments, let us mention that, in line with the regulations in the draft of the new Criminal Procedure Code, special regulations for imposition of punishment have been envisaged in the case of reconciliation and co-operation proceedings.

It is necessary to mention that co-operation proceedings may be applied to ensure revelation of grave, particularly grave crimes or the corruption crimes provided for by the Annex to the Code and inevitability of liability of the persons having committed these crimes. In this case, the person may avail of certain "bonuses"; for example, if he or she contributed to the revelation of a grave crime, the punishment may not be applied against him or her conditionally.

In case of reconciliation proceedings, if the accused pleads guilty, the type and size of the punishment to be imposed on him or her may be established as a result of negotiations during preliminary court hearings. In case of application of these proceedings, the court shall not examine the evidence, and in case of satisfying the motion for applying reconciliation proceedings, the court shall impose on the person punishment which may not exceed one second of the maximum amount or term provided for the given type of punishment by the sanction of the relevant Article of the Special Part. Application of reconciliation proceedings shall be no hindrance to conditional non-application of the punishment imposed.

(4)    The definitions of a number of concepts used in the Criminal Code have been provided in the Draft. For example, the concept of "unlawful taking" has been defined, which, under the current Code, has become exclusively a subject of theoretical interpretation, and this has caused practical problems. It has been prescribed that unlawful taking shall be the act of unlawfully and gratuitously making another’s property the property of the criminal or another person. Unlawful taking shall be deemed to be completed, if the criminal had a real opportunity to unlawfully dispose of or use the property.

(5)    The specifics of criminal liability of minors have been clearly defined. A separate reference has also been made to persons under the age of 21, and in some cases, extending the norms for minors to persons under the age of 21 as well. According to the approach adopted in the Draft, the main types of criminal law influence on persons of this category should be, in order of priority, the coercive measures for upbringing, conditional conviction and only then the punishment. It is noteworthy that, taking into account the social and psychological characteristics of minors, it has been envisaged that persons under the age of 18 may not be sentenced to life imprisonment.

(6)    The institution of criminal liability for legal persons and the system of punishments have been established. The need for envisaging criminal liability for legal persons is substantiated by the Criminal Law Convention on Corruption, based on the results of the assessment of the Fourth Round of Monitoring of the 2018 Istanbul Anti-Corruption Action Plan of the Organisation for Economic Co-operation and Development. The Draft has envisaged that the following measures of criminal law influence may be imposed on a legal person: fines, temporary discontinuation of the right to engage in certain types of activities, prohibition to participate in public procurement, compulsory liquidation and prohibition to carry out activities in the territory of the Republic of Armenia. It is noteworthy that, taking into account the international practice, state and local self-government bodies, State Non-Commercial Organisations and the Central Bank will not be subject to criminal liability.

Taking into account the recommendation of the Central Bank, international practice, as well as the imperative to ensure the monetary policy being led in the country and the financial stability of the country, it has been envisaged that, when imposing criminal law measures against a bank, the court may take into account the opinion provided by the Central Bank of the Republic of Armenia on application of the given measure of criminal law influence and on the consequences of application.

(7)    The institution of release from punishment, in particular conditional non-application of punishment has been clarified and improved, and the institution of replacement of the unserved part of punishment with milder punishment has been revisited. The list of obligations imposed on a person in case of conditional non-application of punishment has been expanded (for example, participation in educational and cultural programmes, including obtainment of a new profession, involvement in activities for the benefit of the public, etc.). The institution of replacement of the unserved part of punishment with milder punishment has been reinterpreted. Under the existing Code, this institution seems to be identified with the institution of conditional early release. To solve this issue, it has been envisaged that, if after rendering a criminal judgment, circumstances have emerged due to which serving the punishment has become impossible, the court shall replace the main or additional punishment or the unserved part of the punishment with a milder punishment, and in case of impossibility to replace the punishment with a milder one, the court shall release the convict from serving the punishment.

(8)    The system of security measures and medical coercive measures has been established. In contrast to punishment, the purpose of these measures is not to correct the person having committed a criminal offence or to restore social justice, but to neutralise the "dangerous state" of the person having committed the act prescribed by the Criminal Code, to prevent possible criminal acts and to re-socialise the person. Such measures include medical coersive measures, prohibition to visit certain places and the obligation to receive psychological assistance. Security measures may be used both in conjunction with and without the punishment as an independent measure of influence, including when releasing a person from criminal liability or punishment.

The Special Part of the Draft is based on the following fundamental provisions:

(1)    Based on the fact that the criminal law meeting the modern requirements should be maximally based on the requirements of the law-enforcement practice, clear standards for distinction between criminal offences and civil offences, as well as between criminal offences and administrative offences have been envisaged.

(2)    The dispositions and sanctions of a number of corpus delicti have undergone significant changes, based on the requirement to implement the principle of proportionality and substantiation of sanctions. In addition, taking into account the problems that have arisen as a result of practical application, a number of corpus delicti have been clarified (for example, failure to pay taxes, duties or make other mandatory payments..․).

(3)    Circumstances aggravating criminal liability or punishment have been revised (for example, the commission of a criminal offence using the influence conditioned by authoritative or official powers or intentional crime against or jointly with a minor, or the commission of the crime in the presence of a minor who is aware of the nature of the act of the criminal if the criminal realises that the person is a minor) have been viewed as circumstances aggravating punishment.

(4)    For the purpose of ensuring effectiveness of the Draft, all the cases when general crimes are envisaged as a feature of corpus delicti or an aggravating circumstance of crimes against special objects have been excluded (for example, murder of a public, political or state figure is envisaged among crimes against public safety).

The draft Criminal Procedure Code of the Republic of Armenia

particularly envisages:

(1)    Eliminating the stage of institution of a criminal case (preparation of materials) — include it in the content of preliminary investigation serving as the only method for conducting pre-trial proceedings, include operational intelligence actions in the Criminal Procedure Code, describing it as implementation of secret investigative actions that are carried out by the investigator's assignment, the purpose of which is to obtain evidence as a result of such actions. Therefore, the current ban on directly using the currently available information received as a result of certain operational intelligence-actions as evidence during preliminary investigation will be lifted.

According to the Draft, the preliminary investigation shall be considered as started from the moment of receiving a report on a crime or directly detecting elements of a crime.

Inquest as an independent stage of proceedings has been eliminated in the Draft. Such a regulation is due to the fact that inquest only prolongs the exercise of preliminary investigation —a more professional form of investigation — and is not an essential advantage, and on the contrary, sometimes it even hinders effective implementation of preliminary investigation, as the materials obtained as a result of the actions taken in that initial stage of preliminary investigation are not always properly recorded, and in some cases, the same action is repeated during preliminary investigation in order to grant the status of evidence to the material obtained as a result of the actions taken. Therefore, based on the need for organising the criminal procedure more effectively, the inquest stage has also been refused in the Draft, and preliminary investigation has become the initial stage of criminal proceedings.

However, inquest has been maintained in the Draft as a form of activity, but the content of that activity has been changed, including operational intelligence actions that have become a criminal procedure regulation in the Draft. As mentioned, certain operational intelligence actions carried out by an investigative body upon the investigator's assignment during preliminary investigation, shall be considered as secret investigative actions (for example, wiretapping, overseeing correspondence, internal viewing, etc.), the results of which shall be evidential only if all the guarantees of the court are provided (court decision, written assignment of the investigator, procedure prescribed by law, etc.). Incorporating the operational intelligence action into the Criminal Procedure Code and referring to the process of conducting operational intelligence actions during criminal proceedings as inquest, is aimed at making that institution become more predictable, as well as at including such actions within the domain of prosecutorial control which is a key guarantee for ensuring the rights and lawful interests of an individual within the framework of the criminal procedure.

It is also envisaged to:

(2)    clarify the purposes, grounds and procedures for coercive measures, including those of application of arrest and detention, expand and optimise the scope of measures of restraint.

Types of arrest have been reviewed in the Draft, by virtue of which, the arrest of the accused not being in custody for bringing to court has been envisaged as a separate type of arrest.

The regulation of the system of measures of restraint has proceeded in two main ways:

a.     the scope of measures of restraint has been expanded as much as possible, envisaging other guarantees that ensure proper conduct of the relevant participant of the trial during the proceedings. In particular, new types of measures of restraint, such as house arrest and administrative oversight, have been envisaged.

b.     the conditions and procedures for applying a measure of restraint have been clarified as much as possible in order to avoid cases of unfounded detention and to rule out cases of illegal application of detention as a measure of restraint.

(3)    The Draft has also envisaged the institution of rehabilitation, which implies the possibility of compensation for damages incurred by the acquitted person within the framework of the given criminal proceedings. The existing legislative regulations of criminal procedure do not specify the grounds and procedures through which the acquitted person can receive compensation for the damages incurred, as a result of which the rights of the acquitted person are often disproportionately limited. The Draft establishes the grounds for a person to exercise the right to demand rehabilitation, and it stipulates that the court judgement should state what measures should be taken to rehabilitate the acquitted accused.

(4)    The Draft has envisaged a procedure for interrogation of a person (deposition of the testimony) in the presence of a judge during the pre-trial proceedings. In particular, the judicial deposition of testimony is carried out for ensuring lawfulness of receiving the confession of the accused and/or ensuring proper presentation of evidence in case it is impossible for the accused to attend the trial or in case of substantiated assumption not to testify legally during the trial.

(5)    The Draft has also envisaged differentiated proceedings, an innovation in the Armenian legal system:

a.     proceedings under a private charge (without preliminary investigation): proceedings under a private charge may be instituted in case the person who has sufficient grounds to assume that damage has been caused to himself/herself through the actions provided for in the relevant article of the Criminal Code of the Republic of Armenia, shall file a criminal claim to the court.

Conciliation and co-operation proceedings, which I spoke about during the presentation of the draft Criminal Code

b.     conciliation proceedings: the court applies conciliation proceedings during preliminary hearings under a public charge, based on the motion of the accused charged for a minor or moderate crime. After satisfying the motion on application of conciliation proceedings, the public prosecutor shall launch negotiations with the accused and his or her defence counsel in order to reach an agreement. After reaching an agreement on the nature and amount of the damage to be compensated, the parties shall launch negotiations on the type and size of the punishment to be applied against the accused.

c.     co-operation proceedings: the proceedings can be applied in case of all crimes according to the severity of those crimes.
In case of application of co-operation proceedings, the accused and the body conducting the proceedings shall sign a co-operation agreement, which shall specify the nature of the co-operation and the actions that the accused shall be obliged to take in order to achieve the goal of the co-operation and the norms of the Criminal Code of the Republic of Armenia that will be applied in case of proper fulfilment of the obligations stipulated by the agreement by the accused.

d.     proceedings regarding a legal entity: due to the fact that legal entities are considered as a subject of criminal liability, separate proceedings have been established in the Draft.

(6)    a two-stage procedure for rendering a judicial act has been envisaged: a verdict and a court judgement. After the main hearings, a verdict shall be rendered which shall resolve the issue of the person's guilt; after the verdict is rendered, additional hearings shall be held for the purpose of solving the issue of rehabilitation of the accused acquitted, the issue of responsibility of the convicted accused and the circumstances mitigating or aggravating the punishment, the issues related to punishment, compensation for the damage caused by the crime, and other relevant issues. The court renders a judgement after additional hearings.
All the issues that have become a subject of examination shall be resolved in the court judgement.

With the adoption of the Draft, it is expected to have a fundamentally new Code that will be in line with the Constitution of the Republic of Armenia and assumed international commitments, will regulate criminal proceedings in a co-ordinated manner and will allow to ensure balanced protection of public and private interests within the framework of criminal procedure, to increase the reputation of the judiciary and the role of court in the field of criminal justice, to establish an effective procedure for conducting proceedings regarding alleged crimes, as well as to guarantee protection of the rights and lawful interests of persons involved in criminal proceedings on the basis of the well-known principles of law.

The Minister of Justice expresses his gratitude to the Council of Europe and the working group for the work that was done.