Former President Robert Kocharian’s lawyers and detractors offered on Friday different interpretations of conclusions drawn by the European Court of Human Rights (ECHR) regarding the legality of coup charges brought against him.
Kocharian is prosecuted under Article 300.1of Armenia’s Criminal Code dealing with “overthrow of the constitutional order.” The accusation rejected by him as politically motivated stems from the 2008 post-election unrest in Yerevan that left ten people dead.
The current code was enacted in 2009. Kocharian’s lawyers maintain that the article in question cannot be used retroactively against him. They argue that the previous code, which was in force during the dramatic events of March 2008, had no clauses relating to “overthrow of the constitutional order” and contained instead references to “usurpation of state power.”
Prosecutors insist that there are no significant differences between the two definitions of a crime allegedly committed by the man who ruled Armenia from 1998-2008.
Kocharian’s legal team last year asked Armenia’s Constitutional Court to declare the coup charge illegal. A Yerevan judge who initially presided over the ex-president’s trial likewise asked the court to pass judgment on the legality of the accusation.
The Constitutional Court in turn decided in July 2019 to request an “advisory opinion” on the matter from the ECHR as well as the Venice Commission of the Council of Europe. It asked the Strasbourg-based court, among other things, to conclude whether or not the recourse to Article 300.1 violated the European Convention on Human Rights
The ECHR’s Grand Chamber released a lengthy and complex opinion on Friday. Citing the European convention and “case-law,” it concluded that Kocharian cannot be prosecuted for overthrowing the constitutional order if that entails “more serious consequences” for the ex-president than “usurpation of state power” would.
“If the subsequent law is more severe than the law that was in force at the time of the alleged commission of the offence, it may not be applied,” reads the ECHR opinion.
The Grand Chamber stressed at the same time that it is up to Armenian courts to look into “specific circumstances of the case” and “establish whether all constitutive elements of the offence … were fulfilled under the provisions of the Criminal Code in the version in force at the time of the impugned events.”
“Should this not be so, the subsequent Article 300.1 of the 2009 [Criminal Code] cannot be considered as more lenient and, consequently, may not be applied in the case,” it added.
Armenia -- Former President Robert Kocharian attends hearins at the Court of Appeals, Yerevan, December 9, 2019.
Kocharian’s lawyers were quick to hail this conclusion. One of them, Aram Vartevanian, claimed that it essentially reflects what they have said all along.
But Tigran Yegorian, a lawyer representing relatives of anti-Kocharian protesters killed in the March 2008 clashes with riot police in Yerevan, claimed the opposite. He argued that the ECHR did not say that Kocharian was indicted in breach of the European Convention.
“This question has to be answered by the national court dealing with this case,” Yegorian told RFE/RL’s Armenian service.
Vladimir Vartanian, the pro-government chairman of the Armenian parliament committee on legal affairs, also insisted that the ECHR did not side with Kocharian. “The ECHR said that it does not consider the existence of Article 300.1 a violation of the European Convention in itself,” he said.
The Constitutional Court has yet to receive a similar opinion from the Venice Commission. Vartanian suggested that it will resume hearings on Kocharian’s and the district court judge’s appeals only after the commission’s response.
The Constitutional Court announced its decision to appeal to the two European bodies one day after Prime Minister Nikol Pashinian launched a scathing attack on its chairman, Hrayr Tovmasian. Pashinian accused him of cutting political deals with former President Serzh Sarkisian to “privatize” the country’s highest court. Tovmasian rejected the accusations.
Tovmasian and six other judges of the 9-member court have since been under strong government to pressure to resign. They have refused to quit.