Thursday, January 03, 2008

Armenia: Move to Abolish Controversial Legislation

By Gayane Mkrtchian in Yerevan (CRS No. 425 03-Jan-08)

Critics say article in country’s criminal code could be used to detain anti-government protestors.

With presidential elections in Armenia less than two months away, the opposition is seeking the abolition of a controversial article in the criminal code that it says can be employed by the authorities to stifle protest.

According to Article 301 of the Armenian criminal code, publicly calling for a violent seizure of power or the overthrow of the constitutional system is punishable by a fine equivalent to 300-500 times the minimum salary in Armenia (about 25-40,000 US dollars), detention for two to three months or imprisonment for up to three years.

Zaruhi Postanjian, an opposition member of parliament with the Heritage Party, is seeking to have the article removed from the criminal code by means of a special draft bill being put before parliament.

“Where is the line drawn?” asked Postanjian. “When does a person’s statement or public appearance constitute a punishable act?”

“It violates and restricts citizens’ right to free expression and is an instrument in the hands of the authorities, being used to silence opposition figures,” she said.

Postanjian says Article 301 violates rights guaranteed under Article 27 of the Armenian constitution and Article 10 of the European Convention on Human Rights.

“Prosecuting a person under Article 301 is a gross violation of his or her right to free expression,” she said. “Article 3 of the Armenian constitution says, ‘The state ensures that citizens’ fundamental rights and freedoms are protected in line with principles and norms of the international law.’”

However, government supporters respond that citizens’ rights are protected by the constitution and that the article defends the state against the possibility of violent opposition.

Aram Safarian of the pro-government Prosperous Armenia faction in parliament says scrapping the article would “pitch the country into anarchy”.

“We do not live in a country where the authorities demonstrate an inclination towards violence,” agreed Armen Ashotian, a deputy with the governing Republican Party.

“Even if the bill is passed [to abolish the article], the president won’t be able to sign it, because it is unconstitutional.”

Ashotian cited Article 43 of the constitution, which says that basic rights and freedoms can be restricted in the interests of state security and maintaining public order.

To the disappointment of its supporters, the bill is unlikely to be debated in parliament before March, meaning the article will still be in force in the run-up to the presidential elections due on February 19.

The article has been employed on several occasions in the last few years, on each occasion when the political temperature has been high in Armenia.

In the spring of 2004, police arrested a number of opposition activists at protest rallies in Yerevan, citing Article 301.

The previous year, several people in the town of Armavir were arrested on the same charge. Among them was Azat Gasparian, 45, a lawyer, who played an active role in the rallies protesting against the presidential election of 2003.

He and four friends were found guilty under Article 301 and sentenced to two months in the harsh Nubarashen prison after attempting to ferry busloads of people from Armavir to Yerevan to take part in a rally.

While Gasparian is still a prominent opposition activist, every time a rally is due to take place he is summoned to a police station and warned that he may be “disturbing public order”.

“They warn me that I should not go too far and threaten to stitch up a case against me up if I do,” he said.

Independent parliamentarian Viktor Dallakian also fell victim to Article 301 when he addressed a public rally in March 2004, at which he said that the Armenian people had the power to get rid of the governing authorities.

“I did not call for a violent overthrow of the constitutional regime,” said Dallakian. “I was released only after the visit of Vladimir Pryakhin, head of the OSCE office in Armenia, to the prosecutor’s office.”

Another opposition parliamentarian, chairman of the National-Democratic Party Shavarsh Kocharian, also said he had been charged under Article 301. After the presidential election in 1996, he was accused of attempting to organize a coup d’etat and faced the same charge following the April 12, 2004 events.

In 2006, charges were laid against Zhirair Sefilian, a veteran of the Nagorny Karabakh war and founder of the movement Armenian Volunteers Association, and against fellow veteran Vardan Malkhasian.

Sefilian had said at a meeting of the association, in reference to the seven Azerbaijani territories around Nagorny Karabakh, now under the control of the Armenian side, “We will break the heads of those who try to surrender the liberated territories.”

Lawyer Vahe Grigorian, who acts for Sefilian, said in his defence, “However harsh, the statement cannot be interpreted as a call for a violent seizure of power. However, this did not stop them from charging them under Article 301. They are political prisoners, who are being prosecuted for their opinions and activities, rather than for a criminal offence.”

The two men are still in prison.

Postanjian says she is trying to enlist the help of international organisations to get Article 301 abolished, and has also secured the help of Armenian human rights ombudsman as mediator.

“The human rights defender has applied to the Venice Commission [of the Council of Europe], asking for its opinion on the article in the shortest time possible,” said Postanjian.

Dallakian says there are two ways to solve the issue - either to abolish the article altogether or reword it to make it less ambiguous.

“It should be more clearly written what is meant by ‘calls’ [to overthrow the authorities],” he said. “Is it when people say “let’s take up arms and give them hell”, or when they just talk about ‘armed struggle’? There must be absolute clarity, otherwise you may be accused of attempting to overthrow the constitutional regime with one loud sneeze.”

Gayane Mkrtchian is a correspondent with in Yerevan

Note: Above are excerpts from the article. The full article appears here. Clarifications and comments by me are contained in {}. Deletions are marked by [...]. The bold emphasis is mine.



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